Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer shall: (i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents; (ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”); (iii) utilize the services of the Trustee for the Exchange Offer; (iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day 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 such Holder’s election to have such Securities exchanged; (v) notify each Holder that any Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and (vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall: (i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer; (ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and (iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities 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 with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 4 contracts
Samples: Registration Rights Agreement (Twenty-First Century Fox, Inc.), Registration Rights Agreement (News Corp), Registration Rights Agreement (News Corp)
Exchange Offer. To The Company and the extent not prohibited by any applicable law or applicable SEC policy, the Issuer Guarantors shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost and the Guarantors’ cost, use their commercially reasonable efforts to (iA) prepare and file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time1933 Act, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 270 days after following the Closing TimeDate. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Guarantors shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with and has made representations to the Company to that effect) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company and the Guarantors shall:
(ia) mail as promptly as practicable after the Exchange Offer Registration Statement has been declared effective under the 1933 Act to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Standard Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Registrable Securities exchanged;
(ve) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company and the Guarantors upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company, guaranteed by the Guarantors on a senior subordinated basis, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that 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 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, as and the Issuer Company and the Guarantors shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. Neither the Company nor any of the Guarantors shall have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company and the Guarantors shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities shall be in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange SecuritiesSecurities 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 1933 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 with respect to the Exchange Offer or the Private Exchange which, in the Company’s and the Guarantors’ judgment, would reasonably be expected to impair the ability of the Company and the Guarantors to proceed with the Exchange Offer or the Private Exchange. The Issuer Company and the Guarantors shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 4 contracts
Samples: Registration Rights Agreement (Sonic Automotive Inc), Registration Rights Agreement (Sonic Automotive Inc), Registration Rights Agreement (Sonic Automotive Inc)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Company shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost cost, (iA) prepare and, as soon as practicable but not later than 90 days following the Closing Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 180 days of the Closing TimeDate, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence use its best efforts to cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 210 days after following the Closing TimeDate. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(ia) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days business days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice Depositary, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company on a senior basis, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that 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 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, as and the Issuer Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. The Company shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act1000 Xxx) of the Exchange SecuritiesSecurities 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 1933 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 with respect to the Exchange Offer or the Private Exchange which, in the Company’s judgment, would reasonably be expected to impair the ability of the Company to proceed with the Exchange Offer or the Private Exchange. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 4 contracts
Samples: Registration Rights Agreement (Service Corporation International), Registration Rights Agreement (Service Corporation International), Registration Rights Agreement (Service Corporation International)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost cost, (i) file cause to be filed with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its all commercially reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time, Target Registration Date and (iii) use its reasonable best efforts to have such Registration Statement remain effective until promptly offer the closing Exchange Notes in exchange for surrender of the Notes upon the effectiveness of the Exchange Offer Registration Statement, and (iv) commence consummate the Exchange Offer and use its reasonable best efforts on or prior to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeConsummation Date. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, unless the Exchange Offer would not be permitted by applicable law or applicable interpretation of the staff of the SEC, it being understood that the objective of such Exchange Offer is to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Securities, if issued) for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange SecuritiesNotes) (any Holder meeting all such requirements, hereinafter an “Eligible Holder”), with and to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail furnish to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documentsdocuments (together, the “Notice”);
(ii) use all commercially reasonable efforts to keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice Notice thereof is mailed furnished to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities withdraw, at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, any Notes tendered for exchange by sending to the institution specified in the notice Notice a telegram, telex, facsimile transmission or letter letter, received before aforesaid time, setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder Xxxxxx is withdrawing such Holder’s election to have such Securities Notes exchanged;
(v) notify each Holder by means of the Notice that any Security Note not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company shall:
(i) accept for exchange all Securities Notes or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Notes or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to the Depositary (or if, the Exchange Notes are in certificated form, each Holder), a new Exchange Security or Private Exchange Security, as the case may be, Notes equal in principal amount to the principal amount of the Securities Notes surrendered by such Holder and accepted for exchangeXxxxxx. Interest on each Exchange Note issued pursuant to the Exchange Offer will accrue from the last date on which interest was paid on the Note surrendered in exchange therefor or, if no interest has been paid on such Note, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its all commercially reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act. Except as set forth herein, the Exchange Act and other applicable laws in connection with 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 SECSEC and that each Holder tendering Notes for exchange shall be an Eligible Holder. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, without limitation, representations that such Holder (i) it is not an affiliate of the Issuer within Company, (ii) the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee Each Holder hereby acknowledges and the Initial Purchasers, of the names agrees that any Participating Broker-Dealer and addresses of the Holders to whom any such Holder using the Exchange Offer is madeto participate in a distribution of the Exchange Notes: (1) could not under SEC policy as in effect on the date of this Agreement rely on the position of the SEC enunciated in Brown & Wood LLP (available February 7, 1997), Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC’s letter to Xxxxxxxx & Sterling dated July 2, 1993, and similar no-action letters (including, without limitation, any no-action letter obtained based on the Initial Purchasers shall have representations in clause (i) above), and (2) must comply with the right to contact registration and prospectus delivery requirements of the Securities Act in connection with the secondary resale transaction and that such Holders a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Items 507 and otherwise facilitate 508, as applicable, of Regulation S-K, the tender SEC standard instructions for filing forms under the Securities Act, if the resales are of Registrable Securities Exchange Notes obtained by such Holder in exchange for Notes acquired by such Holder directly from the Exchange OfferCompany. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issuedpursuant to Section 2(b)(iii) or 2(b)(iv)) pursuant to Section 2(b) hereofof this Agreement.
Appears in 3 contracts
Samples: Registration Rights Agreement (Oncor Electric Delivery Co LLC), Registration Rights Agreement (Oncor Electric Delivery Co LLC), Registration Rights Agreement (Oncor Electric Delivery Co LLC)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Operating Partnership shall, for the benefit of the Holders and Holders, at the Issuer’s cost Operating Partnership's cost, (iA) file with the SEC within use its reasonable best efforts to prepare and, as soon as practicable but not later than 90 days after the Closing Time Date, file with the SEC an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 135 days of the Closing TimeDate, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer Offer, and (ivD) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in cause the Exchange Offer to be consummated not later than 225 180 days after following the Closing TimeDate. The Exchange Securities shall be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Operating Partnership shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Operating Partnership within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Operating Partnership for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and 's business, or (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Operating Partnership shall:
(ia) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security not tendered will shall remain outstanding and continue to accrue interest, but will shall not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Operating Partnership upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Operating Partnership that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “"Private Exchange Securities”"). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the TIA, or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that 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 Private Exchange Securities shall be of the same series as, as and the Issuer Operating Partnership shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. The Operating Partnership shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Operating Partnership shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security shall accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange SecuritiesSecurities 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 1933 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 with respect to the Exchange Offer or the Private Exchange which, in the Operating Partnership's judgment, would reasonably be expected to impair the ability of the Operating Partnership to proceed with the Exchange Offer or the Private Exchange. The Issuer Operating Partnership shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 3 contracts
Samples: Registration Rights Agreement (Simon Property Group L P /De/), Registration Rights Agreement (Simon Property Group L P /De/), Registration Rights Agreement (Simon Property Group L P /De/)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost cost, (i) file cause to be filed with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its all commercially reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 270 days after the Closing Time, Issue Date and (iii) use its reasonable best efforts to have such Registration Statement remain effective until promptly offer the closing Exchange Notes in exchange for surrender of the Notes upon the effectiveness of the Exchange Offer Registration Statement, and (iv) commence consummate the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 within 315 days after the Closing TimeIssue Date. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, unless the Exchange Offer would not be permitted by applicable law or applicable interpretation of the staff of the SEC, it being understood that the objective of such Exchange Offer is to enable each Holder eligible and electing to exchange Registrable Securities for a like principal amount of Exchange Notes (other than Private Exchange Securities, if issuedof the respective series) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange SecuritiesNotes) (any Holder meeting all such requirements, hereinafter an “Eligible Holder”), with and to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail furnish to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documentsdocuments (together, the “Notice”);
(ii) use all commercially reasonable efforts to keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice Notice thereof is mailed furnished to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities withdraw, at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, any Notes tendered for exchange by sending to the institution specified in the notice Notice, a telegram, telex, facsimile transmission or letter letter, received before aforesaid time, setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(v) notify each Holder by means of the Notice that any Security Note not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company shall:
(i) accept for exchange all Securities Notes or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Notes or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to the Depositary (or if, the Exchange Notes are in certificated form, each Holder), a new Exchange Security or Private Exchange Security, as Notes of the case may be, series and equal in principal amount to the respective series and principal amount of the Securities Notes surrendered by such Holder and accepted for exchangeHolder. Interest on each Exchange Note issued pursuant to the Exchange Offer will accrue from the last date on which interest was paid on the Note surrendered in exchange therefor or, if no interest has been paid on such Note, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its all commercially reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act. Except as set forth herein, the Exchange Act and other applicable laws in connection with 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 SECSEC and that each Holder tendering Notes for exchange shall be an Eligible Holder. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, without limitation, representations that such Holder (i) it is not an affiliate of the Issuer within Company, (ii) the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee Each Holder hereby acknowledges and the Initial Purchasers, of the names agrees that any Participating Broker-Dealer and addresses of the Holders to whom any such Holder using the Exchange Offer is madeto participate in a distribution of the Exchange Notes: (1) could not under SEC policy as in effect on the date of this Agreement rely on the position of the SEC enunciated in Xxxxx & Xxxx LLP (available February 7, 1997), Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC’s letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters (including, without limitation, any no-action letter obtained based on the Initial Purchasers shall have representations in clause (i) above), and (2) must comply with the right to contact registration and prospectus delivery requirements of the Securities Act in connection with the secondary resale transaction and that such Holders a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Item 507 and otherwise facilitate 508, as applicable, of Regulation S-K, the tender SEC standard instructions for filing forms under the Securities Act, if the resales are of Registrable Securities Exchange Notes obtained by such Holder in exchange for Notes acquired by such Holder directly from the Exchange OfferCompany. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issuedpursuant to Section 2(b)(iii)) pursuant to Section 2(b) hereofof this Agreement.
Appears in 3 contracts
Samples: Registration Rights Agreement (Oncor Electric Delivery Co LLC), Registration Rights Agreement (Oncor Electric Delivery Co LLC), Registration Rights Agreement (Oncor Electric Delivery Co LLC)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost cost, (i) file cause to be filed with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its all commercially reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 270 days after the Closing Time, Issue Date and (iii) use its reasonable best efforts to have such Registration Statement remain effective until promptly offer the closing Exchange Notes in exchange for surrender of the Notes upon the effectiveness of the Exchange Offer Registration Statement, and (iv) commence consummate the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 within 315 days after the Closing TimeIssue Date. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, unless the Exchange Offer would not be permitted by applicable law or applicable interpretation of the staff of the SEC, it being understood that the objective of such Exchange Offer is to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Securities, if issued) for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange SecuritiesNotes) (any Holder meeting all such requirements, hereinafter an “Eligible Holder”), with and to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail furnish to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documentsdocuments (together, the “Notice”);
(ii) use all commercially reasonable efforts to keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice Notice thereof is mailed furnished to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities withdraw, at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, any Notes tendered for exchange by sending to the institution specified in the notice Notice, a telegram, telex, facsimile transmission or letter letter, received before aforesaid time, setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(v) notify each Holder by means of the Notice that any Security Note not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company shall:
(i) accept for exchange all Securities Notes or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Notes or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to the Depositary (or if, the Exchange Notes are in certificated form, each Holder), a new Exchange Security or Private Exchange Security, as the case may be, Notes and equal in principal amount to the principal amount of the Securities Notes surrendered by such Holder and accepted for exchangeHolder. Interest on each Exchange Note issued pursuant to the Exchange Offer will accrue from the last date on which interest was paid on the Note surrendered in exchange therefor or, if no interest has been paid on such Note, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its all commercially reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act. Except as set forth herein, the Exchange Act and other applicable laws in connection with 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 SECSEC and that each Holder tendering Notes for exchange shall be an Eligible Holder. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, without limitation, representations that such Holder (i) it is not an affiliate of the Issuer within Company, (ii) the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee Each Holder hereby acknowledges and the Initial Purchasers, of the names agrees that any Participating Broker-Dealer and addresses of the Holders to whom any such Holder using the Exchange Offer is madeto participate in a distribution of the Exchange Notes: (1) could not under SEC policy as in effect on the date of this Agreement rely on the position of the SEC enunciated in Xxxxx & Xxxx LLP (available February 7, 1997), Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC’s letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters (including, without limitation, any no-action letter obtained based on the Initial Purchasers shall have representations in clause (i) above), and (2) must comply with the right to contact registration and prospectus delivery requirements of the Securities Act in connection with the secondary resale transaction and that such Holders a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Item 507 and otherwise facilitate 508, as applicable, of Regulation S-K, the tender SEC standard instructions for filing forms under the Securities Act, if the resales are of Registrable Securities Exchange Notes obtained by such Holder in exchange for Notes acquired by such Holder directly from the Exchange OfferCompany. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issuedpursuant to Section 2(b)(iii)) pursuant to Section 2(b) hereofof this Agreement.
Appears in 3 contracts
Samples: Registration Rights Agreement (Oncor Electric Delivery Co LLC), Registration Rights Agreement (Oncor Electric Delivery Co LLC), Registration Rights Agreement (Oncor Electric Delivery Co LLC)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Issuers shall, for the benefit of the Holders and Holders, at the Issuer’s cost Issuers' cost, (iA) prepare and, as soon as practicable but not later than 45 days following the Closing Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Transfer Restricted Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its their reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after 150 days from the Closing TimeDate, (iiiC) use its their reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence the Exchange Offer and use its their reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in cause the Exchange Offer not later than 225 to be consummated on or prior to 30 business days after following the Closing Timedate on which the Exchange Offer Registration Statement was declared effective by the SEC. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Issuers shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Transfer Restricted Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Issuers within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Transfer Restricted Securities acquired directly from the Issuer or an affiliate of the Issuer Issuers for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s 's business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) and to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Issuers shall:
(ia) mail or cause to be mailed as promptly as reasonably practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Transfer Restricted Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Time), on the second to last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Transfer Restricted Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchanged;
(ve) notify each Holder that any Transfer Restricted Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, distribution and determine upon the request advice of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities external counsel that it is ineligible to participate in the Exchange Offer, as soon as practicable upon receipt by the Issuers of a written request from such Initial Purchaser, the Issuers shall issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Issuers, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “"Private Exchange Securities”"). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the "TIA"), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that 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 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, and the Issuer Issuers shall use its commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as, the Exchange Securities. The Issuers shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Issuers shall:
(i) accept for exchange all Transfer Restricted Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Transfer Restricted Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Transfer Restricted Securities so accepted for exchange in a principal amount equal to the principal amount of the Transfer Restricted Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Transfer Restricted Securities surrendered in exchange therefor or, if no interest has been paid on the Transfer Restricted Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Transfer Restricted Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Transfer Restricted Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain shall have made customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange Securities, and shall have made such other representations as may be reasonably necessary under applicable SEC rules, policy, regulations or interpretations to render the use of Form S-4 or other appropriate form under the 1933 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 or body with respect to the Exchange Offer or the Private Exchange which, in the Issuers' judgment, would reasonably be expected to impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange. The Issuer Issuers shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Transfer Restricted Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 2 contracts
Samples: Note Registration Rights Agreement (Aladdin Gaming Enterprises Inc), Note Registration Rights Agreement (Aladdin Gaming Enterprises Inc)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyExcept as set forth in Section 2(b) below, the Issuer Corporation and the Trust shall, for the benefit of the Holders and Holders, at the Issuer’s cost Corporation's cost, use commercially reasonable efforts to (i) file cause to be filed with the SEC within 90 150 days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer relating to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeIssue Date, and (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (or longer if required by applicable law) after the closing date notice of the Exchange Offer and (iv) commence is mailed to the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeHolders. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Corporation and the Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Debentures or a like liquidation amount of Exchange Capital Securities, if issued) for together with the Exchange Securities Guarantee, as applicable (assuming that such Holder (i) is not an affiliate Affiliate of the Issuer within Trust or the meaning of Rule 405 under the Securities Act and Corporation, (ii) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Corporation for its own account, (iii) acquires the Exchange Securities in the ordinary course of such Holder’s 's business and (iv) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” lawssky laws (other than requiring minimum transfers in blocks having an aggregate principal or liquidation amount, as the case may be, of $100,000). In connection with the Exchange Offer, the Issuer Corporation and the Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interestinterest or accumulate distributions, as the case may be, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior If the Initial Purchaser determines upon advice of its outside counsel that it is not eligible to consummation of participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Securities constituting any Securities acquired by it and such Securities have the status portion of an unsold allotment in the initial distribution, as soon as practicable upon receipt by the Issuer shall, upon Corporation and the Trust of a written request of from such Initial Purchaser, simultaneously with the delivery of Corporation and the Exchange Securities in the Exchange OfferTrust, as applicable, shall issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like liquidation amount of Capital Securities of the Trust or, in the event the Trust is liquidated and Subordinated Debentures are distributed, a like principal amount of debt securities the Subordinated Debentures of the Issuer Corporation, together with the Exchange Guarantee, in each case that are identical (except that such securities shall may bear appropriate a customary legend with respect to restrictions on transfer restrictionspursuant 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 (other than requiring minimum transfers in blocks having an aggregate principal or liquidation amount, as the case may be, of $100,000). The Private , and that the Exchange Securities, if anythe Private Exchange Securities and the Securities will vote and consent together on all matters as one class and that none of the Exchange Securities, shall be issued under the IndenturePrivate Exchange Securities and 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, as the Exchange Securities and the Issuer shall use its reasonable best efforts Corporation and the Trust will seek to have cause the CUSIP Service Bureau to issue the same CUSIP Numbers for the Private Exchange Securities bear as for the same CUSIP number as Exchange Securities issued pursuant to the applicable Exchange SecuritiesOffer. As soon as practicable after the close of the Exchange Offer and/or and, if applicable, the Private Exchange, the Corporation and the Trust, as the case may berequires, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the applicable Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and Corporation; and
(iii) issue, and cause the applicable Trustee under the Indenture Indenture, the Declaration or the Guarantee, as applicable, to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may beapplicable, equal in principal amount to the principal amount of the Subordinated Debentures or equal in liquidation amount to the liquidation amount of the Capital Securities (together with the guarantee thereof) as are surrendered by such Holder Holder. Distributions on each Exchange Capital Security and accepted for exchangeinterest on each Exchange Debenture and Private Exchange Security issued pursuant to the Exchange Offer and in the 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 therefor 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 the staff of the SEC, the Issuer Corporation and the Trust shall use its reasonable their best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, in the case of any Holder of Capital Securities, representations that such Holder (i) it is not an affiliate Affiliate of the Issuer within Trust or the meaning of Rule 405 under Corporation, (ii) the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Capital Securities. The Issuer Corporation and the Trust shall inform the Initial PurchasersPurchaser, after consultation with the Trustee and the Initial Purchasersapplicable Trustees, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers 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(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer Corporation and the Trust shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) held by any Holder pursuant to Section 2(b) hereofof this Agreement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Mainstreet Bankgroup Inc), Registration Rights Agreement (Mainstreet Bankgroup Inc)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyExcept as set forth in Section 2(b) below, the Issuer Company and the Guarantor shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, use its reasonable best efforts to (i) file with the SEC within 90 150 calendar days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer relating to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 210 calendar days after the Closing TimeIssue Date, (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (or longer if required by applicable law) after the closing date notice of the Exchange Offer is mailed to the Holders and (iv) commence cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 be consummated within 240 calendar days after the Closing TimeIssue Date. Upon Promptly after the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities for a like principal amount of Exchange Notes together with the Exchange Guarantees (other than Private Exchange Securities, if issued) for Exchange Securities (assuming provided that such Holder (i) is not an affiliate Affiliate of the Issuer within Company or the meaning of Rule 405 under the Securities Act and Guarantor, (ii) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own accountCompany, (iii) acquires the Exchange Securities in the ordinary course of such Holder’s 's business and (iv) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company and the Guarantor shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”"EXCHANGE PERIOD");
(iii) utilize the services of the Trustee Depositary for the Exchange OfferOffer with respect to Notes represented by a global certificate;
(iv) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York City time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice to Holders, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Registrable Securities exchanged;
(v) notify each Holder that any Registrable Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, interest but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company and the Guarantor shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and letter of transmittal which is an exhibit thereto;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, Company and the Guarantor; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, Securities equal in principal amount to the principal amount of the Securities Notes as are surrendered by such Holder Holder, and accepted the Guarantor will execute the Exchange Guarantees. Interest on each Exchange Note issued pursuant to the Exchange Offer will accrue from the last date on which interest was paid or duly provided for exchangeon the Note surrendered in exchange therefor or, if no interest has been paid on such Note, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company and the Guarantor shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, conditions other than the conditions referred to in Section 2(b)(i) and (ii) below and those conditions that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECare customary in similar exchange offers. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, in the case of any Holder, representations that such Holder (i) it is not an affiliate Affiliate of the Issuer within Company or the meaning of Rule 405 under the Securities ActGuarantor, or if (ii) it is such an affiliatenot a broker-dealer tendering Registrable Securities acquired directly from the Company, it will comply with (iii) the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be are being acquired in the ordinary course of its business and that (iv) at the time of the commencement of the Exchange Offer Offer, it has no arrangement arrangements or understandings with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer Company and the Guarantor shall inform the Initial Purchasers, after consultation with the Trustee and the Initial PurchasersTrustee, 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 in order to facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandisMUTATIS MUTANDIS, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer Company and the Guarantor shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) held by any Holder pursuant to Section 2(b) hereofof this Agreement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Qwest Communications International Inc), Registration Rights Agreement (Qwest Communications International Inc)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost cost, (i) file cause to be filed with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its all commercially reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 270 days after the Closing Time, Issue Date and (iii) use its reasonable best efforts to have such Registration Statement remain effective until promptly offer the closing Exchange Notes in exchange for surrender of the Notes upon the effectiveness of the Exchange Offer Registration Statement, and (iv) commence consummate the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 within 315 days after the Closing TimeIssue Date. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, unless the Exchange Offer would not be permitted by applicable law or applicable interpretation of the staff of the SEC, it being understood that the objective of such Exchange Offer is to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Securities, if issued) for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange SecuritiesNotes) (any Holder meeting all such requirements, hereinafter an “Eligible Holder”), with and to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail furnish to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documentsdocuments (together, the “Notice”);
(ii) use all commercially reasonable efforts to keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice Notice thereof is mailed furnished to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities withdraw, at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, any Notes tendered for exchange by sending to the institution specified in the notice Notice, a telegram, telex, facsimile transmission or letter letter, received before aforesaid time, setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(v) notify each Holder by means of the Notice that any Security Note not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company shall:
(i) accept for exchange all Securities Notes or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Notes or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to the Depositary (or if, the Exchange Notes are in certificated form, each Holder), a new Exchange Security or Private Exchange Security, as the case may be, Notes equal in principal amount to the principal amount of the Securities Notes surrendered by such Holder and accepted for exchangeHolder. Interest on each Exchange Note issued pursuant to the Exchange Offer will accrue from the last date on which interest was paid on the Note surrendered in exchange therefor or, if no interest has been paid on such Note, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its all commercially reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act. Except as set forth herein, the Exchange Act and other applicable laws in connection with 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 SECSEC and that each Holder tendering Notes for exchange shall be an Eligible Holder. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, without limitation, representations that such Holder (i) it is not an affiliate of the Issuer within Company, (ii) the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee Each Holder hereby acknowledges and the Initial Purchasers, of the names agrees that any Participating Broker-Dealer and addresses of the Holders to whom any such Holder using the Exchange Offer is madeto participate in a distribution of the Exchange Notes: (1) could not under SEC policy as in effect on the date of this Agreement rely on the position of the SEC enunciated in Xxxxx & Xxxx LLP (available February 7, 1997), Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC’s letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters (including, without limitation, any no-action letter obtained based on the Initial Purchasers shall have representations in clause (i) above), and (2) must comply with the right to contact registration and prospectus delivery requirements of the Securities Act in connection with the secondary resale transaction and that such Holders a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Item 507 and otherwise facilitate 508, as applicable, of Regulation S-K, the tender SEC standard instructions for filing forms under the Securities Act, if the resales are of Registrable Securities Exchange Notes obtained by such Holder in exchange for Notes acquired by such Holder directly from the Exchange OfferCompany. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issuedpursuant to Section 2(b)(iii)) pursuant to Section 2(b) hereofof this Agreement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Oncor Electric Delivery Co LLC), Registration Rights Agreement (Oncor Electric Delivery Co LLC)
Exchange Offer. To (a) The Company and the extent not prohibited by any applicable law or applicable SEC policy, the Issuer Guarantors shall, for the benefit of the Holders and at the Issuer’s cost :
(i) prepare and file with the SEC within 90 days promptly after the Closing Time an date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Offer Registration Statement Statement”) on an appropriate form under the Securities Act covering with respect to a proposed offer (the offer by the Issuer “Exchange Offer”) to the Holders to issue and deliver to such Holders, in exchange all of for the Registrable Securities (other than Private Exchange SecuritiesNotes, if issued) for a like aggregate principal amount of Exchange Securities, ;
(ii) use its their respective reasonable best efforts to cause such 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 declared permitted by a policy of the SEC, use their respective reasonable best efforts to commence the Exchange Offer promptly after the date on which the Exchange Offer Registration Statement has become effective under and use their respective reasonable best efforts to consummate the Securities Act by the SEC Exchange Offer on or prior to the 180th day date that is 210 days after the Closing TimeDate, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of consummate the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly Notes tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day 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 such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable .
(b) The Exchange Securities shall be issued under, and entitled to the benefits of, the Indenture or a trust indenture that is identical to the Indenture (other than Private 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 Exchange SecuritiesOffer, if issuedthe Company and the Guarantors shall:
(i) who wishes mail to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in each Holder a copy of the Prospectus forming part of the Exchange Offer will Registration Statement, together with an appropriate letter of transmittal that is an exhibit to the Exchange Offer Registration Statement, and any related documents;
(ii) 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 depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be required to make certain customary representations in connection therewith, including representations that such Holder is not the Trustee or an affiliate of the Issuer within Trustee;
(iv) permit Holders to withdraw tendered Notes at any time prior to the meaning close of Rule 405 under business, New York time, on the Securities Act, or if it is such an affiliate, it will last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply with the registration and prospectus delivery requirements of the Securities Act all laws applicable to the extent applicable, that any Exchange Securities to be received by it will be acquired in Offer.
(d) As soon as practicable after the ordinary course of business and that at the time of the commencement close of the Exchange Offer it has no arrangement with any Person to participate in Offer, the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee Company and the Initial Purchasers, of the names Guarantors shall:
(i) accept for exchange all Notes validly tendered and addresses of the Holders not validly withdrawn pursuant 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 Registrable Securities in the Exchange Offer. Upon consummation ;
(ii) deliver to the Trustee for cancellation all Notes so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver to each Holder of the Exchange Offer in accordance with this Section 2(a), the provisions Notes a principal amount of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and equal to the Issuer shall have no further obligation principal amount to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofthe Notes of such Holder so accepted for exchange.
Appears in 2 contracts
Samples: Registration Rights Agreement (TWC Holding Corp.), Registration Rights Agreement (Wornick CO Right Away Division, L.P.)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Corporation and the Trust shall, for the benefit of the Holders and Holder, at the Issuer’s cost Corporation's cost, use its best efforts to (i) file cause to be filed with the SEC within 90 days by the March 31 after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day April 30 after the Closing Time, Issue Date and (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (or longer if required by applicable law) after the closing date notice of the Exchange Offer and (iv) commence is mailed to the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeHolders. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Corporation and the Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Debentures or a like liquidation amount of Exchange Capital Securities, if issued) for together with the Exchange Securities Guarantee, as applicable (assuming that such Holder is not an affiliate of the Issuer Corporation within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Corporation for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Corporation and the Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interestinterest or accumulate distributions, as the case may be, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior If the Initial Purchaser determines upon advice of its outside counsel that it is not eligible to consummation of participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Securities constituting any Securities acquired by it and such Securities have the status portion of an unsold allotment in the initial distribution, as soon as practicable upon receipt by the Issuer shall, upon Corporation and the Trust of a written request of such from the Initial Purchaser, simultaneously with the delivery of Corporation and the Exchange Securities in the Exchange OfferTrust, as applicable, shall issue and deliver to such the Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such the Initial Purchaser, a like liquidation amount of Capital Securities of the Trust, together with the Exchange Guarantee, or a like principal amount of debt securities the Subordinated Debentures of the Issuer Corporation, as applicable, that are identical (except that such securities shall may bear appropriate a customary legend with respect to restrictions on transfer restrictionspursuant to the Securities Act) to the Exchange Securities (the “"Private Exchange Securities”). The Private ") 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, if anythe Private Exchange Securities and the Securities will vote and consent together on all matters as one class and that neither the Exchange Securities, shall be issued under the IndenturePrivate 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, as the Exchange Securities and the Issuer shall use its reasonable best efforts Corporation and the Trust will seek to have cause the CUSIP Service Bureau to issue the same CUSIP Numbers for the Private Exchange Securities bear as for the same CUSIP number as Exchange Securities issued pursuant to the applicable Exchange SecuritiesOffer. As soon as practicable after the close of the Exchange Offer and/or and, if applicable, the Private Exchange, the Corporation and the Trust, as the case may berequires, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the applicable Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and Corporation; and
(iii) issue, and cause the applicable Trustee under the Indenture Indenture, the Declaration or the Guarantee, as applicable, to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may beapplicable, equal in principal amount to the 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 Holder. Distributions on each Exchange Capital Security and accepted for exchangeinterest on each Exchange Debenture and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the 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 the staff of the SEC, the Issuer Corporation and the Trust shall use its reasonable their best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, in the case of any Holder of Capital Securities, representations that such Holder (i) it is not an affiliate of the Issuer within Trust or the meaning of Rule 405 under Corporation, (ii) the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Capital Securities. The Issuer Corporation and the Trust shall inform the Initial PurchasersPurchaser, after consultation with the Trustee and the Initial PurchasersTrustee, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers 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(a), the 2(a),the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer Corporation and the Trust shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofof this Agreement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Hubco Inc), Registration Rights Agreement (Hubco Inc)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyExcept as set forth in Section 2(b) below, the Issuer Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (i) file with the SEC within 90 210 calendar days after the Closing Time Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer relating to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 270 calendar days after the Closing TimeDate, and (iii) use its reasonable best efforts to have provided such Exchange Offer Registration Statement remain has been declared effective until under the closing of Securities Act by the Exchange Offer and (iv) SEC, promptly commence the Exchange Offer and use its reasonable best efforts keep the Exchange Offer open for not less than 30 days, or longer if required by applicable law, after the date on which such Registration Statement was declared effective by the SEC (such period referred to herein as the "Exchange Period") and at the termination thereof, issue Exchange Securities Notes in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly Notes tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness Each Holder of Registrable Notes to be exchanged in the Exchange Offer Registration Statementshall be required, the Issuer shall promptly commence as a condition to participating in the Exchange Offer, to represent that it being acquires the objective Exchange Notes in the ordinary course of such Exchange Offer to enable each Holder eligible Holder's business and electing to exchange Registrable Securities that it (other than Private Exchange Securities, if issuedi) for Exchange Securities (assuming that such Holder is not an affiliate Affiliate of the Issuer within Company, (ii) does not hold any Notes to be exchanged for Exchange Notes in the meaning Exchange Offer that were acquired other than in the ordinary course of Rule 405 under the Securities Act and business, (iii) is not a broker-dealer tendering Registrable Securities Notes acquired directly from the Issuer or an affiliate Company, (iv) at the time of the Issuer for its own accountExchange Offer, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” lawsNotes. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee Depositary for the Exchange OfferOffer with respect to the Notes represented by a global certificate;
(iviii) permit Holders to withdraw tendered Securities Registrable Notes at any time prior to the close of business, New York City time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice to Holders, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Registrable Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Registrable Notes exchanged;
(viv) notify each Holder that any Security Registrable Note not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, interest but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all material respects with all applicable laws and regulations relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company shall:
(i) accept for exchange all Securities Registrable Notes or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and letter of transmittal;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Registrable Notes or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, Notes equal in principal amount to the principal amount of the Securities Notes as are surrendered by such Holder and accepted Holder. Interest on each Exchange Note issued pursuant to the Exchange Offer will accrue from the last date on which interest was paid or duly provided for exchangeon the Note surrendered in exchange therefor or, if no interest has been paid on such Note, from the date of original issue of such Note. To the extent not prohibited by any law judicial order, judgment, law, regulation or applicable interpretation of the staff of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, conditions other than the conditions referred to in Section 2(b)(i), (ii) and (iii) below and those conditions that the Exchange Offer does not violate are customary in similar exchange offers, except as may be required by applicable law or any applicable interpretation of the staff of the SEClaw. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) Notes who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) Notes for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, in the case of any Holder, representations that such Holder (i) it is not an affiliate Affiliate of the Issuer within the meaning of Rule 405 under the Securities ActCompany, or if (ii) it is such an affiliatenot a broker-dealer tendering Registrable Notes acquired directly from the Company, it will comply with (iii) the registration Notes being exchanged, and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received received, by it will be have been or are being acquired in the ordinary course of its business and that (iv) at the time of the commencement of the Exchange Offer Offer, it has no arrangement arrangements or understandings with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial PurchasersTrustee, 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 in order to facilitate the tender of Registrable Securities Notes in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities Notes held by Initial Purchasers and Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register the Registrable Securities (Notes held by any other than Private Exchange Securities, if issued) Holder pursuant to Section 2(b) hereofof this Agreement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Ohio Power Co), Registration Rights Agreement (Columbus Southern Power Co /Oh/)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the Commission, the Company and the Issuer Trust shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, use their respective best efforts to (i) file cause to be filed with the SEC Commission within 90 150 days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to Commission not later than the 180th day date which is 180 days after the Closing TimeIssue Date, and (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 Business Days (or longer if required by applicable law) after the closing date notice of the Exchange Offer and (iv) commence is mailed to the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeHolders. Upon the effectiveness of the Exchange Offer Registration Statement, the Company and the Issuer Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer and use their respective best efforts to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange for a like principal amount of New Junior Subordinated Debentures or a like liquidation amount of New Capital Securities, if issued) for Exchange Securities together with the New Guarantee, as applicable (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Company and the Issuer Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interestinterest or accumulate distributions, as the case may be, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior If the Initial Purchaser determines upon advice of its outside counsel that it is not eligible to consummation of participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Securities constituting any Securities acquired by it and such Securities have the status portion of an unsold allotment in the initial distribution, as soon as practicable upon receipt by the Company and the Issuer shall, upon the Trust of a written request of from such Initial Purchaser, simultaneously with the delivery of Company and the Exchange Securities in the Exchange OfferIssuer Trust, as applicable, shall issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like liquidation amount of New Capital Securities of the Issuer Trust, together with the New Guarantee, or a like principal amount of debt securities the Junior Subordinated Debentures of the Issuer Company, as applicable, that are identical (except that such securities shall may bear appropriate a customary legend with respect to restrictions on transfer restrictionspursuant to the Securities Act) to the Exchange Securities (the “"Private Exchange Securities”") and which are issued pursuant to the Indenture, the Trust Agreement or the Guarantee (which provides that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture or the Trust Agreement, as applicable (other than to require minimum transfers thereof to be in blocks of $100,000 principal amount or liquidation amount, as the case may be). The Private , and that the Exchange Securities, if anythe Private Exchange Securities and the Securities will vote and consent together on all matters as one class and that neither the Exchange Securities, shall be issued under the IndenturePrivate 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, as the Exchange Securities and the Company and the Issuer shall use its reasonable best efforts Trust will seek to have cause the CUSIP Service Bureau to issue the same CUSIP Numbers for the Private Exchange Securities bear as for the same CUSIP number as Exchange Securities issued pursuant to the applicable Exchange SecuritiesOffer. As soon as practicable after the close of the Exchange Offer and/or and, if applicable, the Private Exchange, the Company and the Issuer Trust, as the case may berequires, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the applicable Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the applicable Trustee under the Indenture Indenture, the Trust Agreement or the Guarantee, as applicable, to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may beapplicable, equal in principal amount to the principal amount of the Junior Subordinated Debentures or equal in liquidation amount to the liquidation amount of the Capital Securities (together with the guarantee thereof) as are surrendered by such Holder Holder. Distributions on each New Capital Security and accepted for exchangeinterest on each New Junior Subordinated Debenture issued pursuant to the Registered Exchange Offer and Distributions or interest, as the case may be, on each Private Exchange Security issued in the Private Exchange will accrue from the last date on which a Distribution or interest was paid on the Capital Security or the Junior Subordinated Debenture surrendered in exchange therefor or, if no Distribution or interest has been paid on such Capital Security or Junior Subordinated Debenture, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SECCommission, the Company and the Issuer Trust shall use its reasonable their best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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 SECCommission. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, in the case of any Holder of Capital Securities, representations that such Holder (i) it is not an affiliate of the Issuer within Trust or the meaning of Rule 405 under Company, (ii) the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange New Capital Securities. The Company and the Issuer Trust shall inform the Initial PurchasersPurchaser, after consultation with the Trustee and the Initial PurchasersTrustee, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers 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(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Company and the Issuer Trust shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofof this Agreement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Provident Trust I), Registration Rights Agreement (FCB/Sc Capital Trust I)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Company shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost cost, (iA) prepare and, as soon as practicable but not later than 210 days following the Closing Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 270 days of the Closing TimeDate, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in cause the Exchange Offer to be consummated not later than 225 315 days after following the Closing TimeDate. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(ia) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company on a senior basis, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that 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 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, as and the Issuer Company shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. The Company shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange SecuritiesSecurities 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 1933 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 with respect to the Exchange Offer or the Private Exchange which, in the Company’s judgment, would reasonably be expected to impair the ability of the Company to proceed with the Exchange Offer or the Private Exchange. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Baltimore Gas & Electric Co), Registration Rights Agreement (Baltimore Gas & Electric Co)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange SecuritiesNotes, if issued) for a like principal amount of Exchange SecuritiesNotes, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities Notes in exchange for all Registrable Securities (other than the Private Exchange SecuritiesNotes, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange SecuritiesNotes, if issued) for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Securi- ties Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange SecuritiesNotes), with such Exchange SecuritiesNotes, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail deliver to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day 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 such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities Notes in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities Notes (the “Private Exchange SecuritiesNotes”). The Private Exchange SecuritiesNotes, if any, shall be issued under the Indenture. The Private Exchange Securities Notes shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities Notes bear the same CUSIP number as the applicable Exchange SecuritiesNotes. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security Note or Private Exchange SecurityNote, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange SecuritiesNotes, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange SecuritiesNotes, if issued) for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities 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 with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange SecuritiesNotes, if issued, and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange SecuritiesNotes, if issued) pursuant to Section 2(b) hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Twenty-First Century Fox, Inc.), Registration Rights Agreement (Twenty-First Century Fox, Inc.)
Exchange Offer. To The Company and the extent not prohibited by any applicable law or applicable SEC policy, the Issuer Guarantors shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost and the Guarantors’ cost, use their reasonable best efforts to (iA) prepare and, as soon as practicable but not later than 90 days following the Closing Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 150 days of the Closing TimeDate, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 180 days after following the Closing TimeDate. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Guarantors shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder or holder (a) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s or holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company and the Guarantors shall:
(ia) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Standard Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holderparty’s election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company and the Guarantors upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company, guaranteed by the Guarantors on a senior basis, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that 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 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, as and the Issuer Company and the Guarantors shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. Neither the Company nor any of the Guarantors shall have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, Company and the Issuer Guarantors shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and party so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities shall be in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange SecuritiesSecurities 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 1933 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 with respect to the Exchange Offer or the Private Exchange which, in the Company’s and the Guarantors’ judgment, would reasonably be expected to impair the ability of the Company and the Guarantors to proceed with the Exchange Offer or the Private Exchange. The Issuer Company and the Guarantors shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 parties and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Sre Maryland 2 LLC), Registration Rights Agreement (Sonic Automotive Clearwater Inc)
Exchange Offer. To Each of the extent not prohibited by any applicable law or applicable SEC policy, Company and the Issuer Guarantor shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost and the Guarantor's cost, (iA) use its reasonable best efforts to prepare and, as soon as practicable within 180 days following the Closing Date file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 270 days of the Closing TimeDate, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and Offer, (ivD) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in cause the Exchange Offer to be completed not later than 225 300 days after following the Closing TimeDate, (E) provided that the Preferred Securities meet the minimum listing requirements of the New York Stock Exchange at the time an Exchange Offer Registration Statement is declared effective, use their reasonable best efforts to list the Preferred Securities on the New York Stock Exchange within 30 days following the Exchange Offer Registration Statement being declared effective, and (F) for a period of 90 days following the consummation of the exchange offer, to make available a prospectus meeting the requirements of the 1933 Act to any such participating broker-dealer for use in connection with any resale of any exchange notes acquired in the exchange offer. If the Company has not completed the Exchange Offer within 365 days of the Closing Date, then the Company will file as promptly as practicable a Shelf Registration Statement (as described in Section 2.2 hereof). The Exchange Securities will be issued under the Registrar and Transfer Agency Agreement. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Guarantor shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer within the meaning of “affiliate” (as such term is defined in Rule 405 under the Securities Act and 1000 Xxx) of the Company or the Guarantor (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer Company or an affiliate of the Issuer Guarantor for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and or under state securities or “blue sky” sky laws. Exchange Securities will be issued under the Exchange Offer as evidence of the same continuing rights and preferences under the Preferred Securities and the Guarantee. Under no circumstances will the surrender of the Preferred Securities and the issue of Exchange Securities constitute new securities or obligate the Company and the Guarantor to redeem the Preferred Securities. In connection with the Exchange Offer, the Issuer Company and the Guarantor shall:
(ia) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business5:00 PM, New York City time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Preferred Securities exchanged;
(ve) notify each Holder that any Security Registrable Securities not tendered will remain outstanding and continue to accrue interestoutstanding, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds any Preferred Securities acquired by it and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company and the Guarantor upon the request of such the Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such the Initial Purchaser in exchange (the “Private Exchange”) for the Preferred Securities held by such the Initial Purchaser, a like principal amount number of debt securities Preferred Securities of the Issuer Company, unconditionally guaranteed by the Guarantor as to payment of distributions (“remuneración”), on the Preferred Securities, as well as payment of the redemption price for the Preferred Securities upon any redemption thereof and the liquidation distribution of the Preferred Securities upon the winding-up or liquidation of the Company, that are identical (except that such securities Preferred Securities and Guarantee shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureRegistrar and Transfer Agency Agreement or (ii) a registrar and transfer agency agreement identical in all material respects to the Registrar and Transfer Agency Agreement, and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Registrar and Transfer Agency Agreement but that the Private Exchange Securities shall be subject to such transfer restrictions. The Registrar and Transfer Agency Agreement or such registrar and transfer agency agreement shall provide that the Exchange Securities, the Private Exchange Securities and the Preferred 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 Preferred 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, and the Issuer Company shall use its reasonable best efforts to have ensure that the Private Exchange Securities bear the same CUSIP number as as, the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company and the Guarantor shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Registrable Securities duly properly tendered and not validly withdrawn pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, to the Trustee Registrar and Transfer Agent for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture Registrar and Transfer Agent promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, to each Holder of Registrable Securities so accepted for exchange in number equal in principal amount to the principal amount number of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Distributions on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which distributions were paid on the Registrable Securities surrendered in exchange therefor or, if no distributions have been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the valid tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act1000 Xxx) of the Exchange SecuritiesSecurities 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 F-4 or other appropriate form under the 1933 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 with respect to the Exchange Offer or the Private Exchange which, in the judgment of the Company and the Guarantor, would reasonably be expected to impair the ability of the Company or the Guarantor to proceed with the Exchange Offer or the Private Exchange. The Issuer shall Company and the Guarantor shall, to the extent such information is available to the Company or the Guarantor, inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchaser of the names and addresses of the Holders to whom the Exchange Offer is made, subject to the right of any Holder to object to the disclosure of such information with respect to such Holder, and the Initial Purchasers Purchaser shall have the right right, subject to applicable law, 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(a)Agreement, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, Company and the Issuer Guarantor shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof2.2 of this Agreement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Banco Santander Central Hispano Sa), Registration Rights Agreement (Santander Finance Preferred S.A. Unipersonal)
Exchange Offer. To The Company and the extent not prohibited by any applicable law or applicable SEC policy, the Issuer Guarantors shall, for the benefit of the Holders and Holders, at their cost, (A) prepare and, not later than 120 days following the Issuer’s cost (i) Closing Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities, if issued) for of a like principal amount of Exchange Securities, (iiB) use its their commercially reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 180 days of the Closing Time, Date and (iiiC) use its their commercially reasonable best efforts to have such Registration Statement remain effective until the closing of cause the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 210 days after following the Closing TimeDate. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Guarantors shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with and has made representations to the Company to that effect) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company and the Guarantors shall:
(ia) mail as promptly as practicable after the Exchange Offer Registration Statement has been declared effective under the 1933 Act to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate any letter of transmittal and any related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Registrable Securities exchanged;
(ve) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Initial Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company and the Guarantors upon the request of any such Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company on a senior basis, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private For the avoidance of doubt, such Exchange Securities, if any, Securities shall be issued under likewise guaranteed by the IndentureGuarantors. The Exchange Securities and the Private Exchange 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, has been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that the Initial Securities, the Exchange Securities and the Private Exchange Securities shall vote and consent together on all matters as one class and that none of the same series asExchange Securities, and the Issuer Private Exchange Securities or the Initial Securities will have the right to vote or consent as a separate class on any matter. The Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. Neither the Company nor any of the Guarantors shall have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company and the Guarantors shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Initial Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law last date on which interest was paid on the Registrable Securities surrendered in exchange therefor (or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete if the Exchange Offer as provided aboveSecurity or Private Exchange Security is authenticated between a record date and an interest payment date with respect to the Registrable Securities surrendered in exchange therefor, and shall comply with from such interest payment date) or, if no interest has been paid on such Registrable Securities, from the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange OfferClosing Date. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange SecuritiesSecurities 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 1933 Act available, (iv) all governmental approvals which the Company reasonably deems necessary for the consummation of the Exchange Offer and the Private Exchange shall have been obtained and (v) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offer or the Private Exchange which, in the Company’s judgment, would reasonably be expected to impair the ability of the Company or any of the Guarantors to proceed with the Exchange Offer or the Private Exchange. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Windstream Corp), Registration Rights Agreement (Windstream Corp)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyExcept as set forth in Section 2(b) below, the Issuer Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (i) file with the SEC within 90 210 calendar days after the Closing Time Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer relating to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 270 calendar days after the Closing TimeDate, and (iii) use its reasonable best efforts to have provided such Exchange Offer Registration Statement remain has been declared effective until under the closing of Securities Act by the Exchange Offer and (iv) SEC, promptly commence the Exchange Offer and use its reasonable best efforts keep the Exchange Offer open for not less than 30 days, or longer if required by applicable law, after the date on which such Registration Statement was declared effective by the SEC (such period referred to herein as the "EXCHANGE PERIOD") and at the termination thereof, issue Exchange Securities Notes in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly Notes tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness Each Holder of Registrable Notes to be exchanged in the Exchange Offer Registration Statementshall be required, the Issuer shall promptly commence as a condition to participating in the Exchange Offer, to represent that it being acquires the objective Exchange Notes in the ordinary course of such Exchange Offer to enable each Holder eligible Holder's business and electing to exchange Registrable Securities that it (other than Private Exchange Securities, if issuedi) for Exchange Securities (assuming that such Holder is not an affiliate Affiliate of the Issuer within Company, (ii) does not hold any Notes to be exchanged for Exchange Notes in the meaning Exchange Offer that were acquired other than in the ordinary course of Rule 405 under the Securities Act and business, (iii) is not a broker-dealer tendering Registrable Securities Notes acquired directly from the Issuer or an affiliate Company, (iv) at the time of the Issuer for its own accountExchange Offer, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” lawsNotes. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee Depositary for the Exchange OfferOffer with respect to the Notes represented by a global certificate;
(iviii) permit Holders to withdraw tendered Securities Registrable Notes at any time prior to the close of business, New York City time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice to Holders, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Registrable Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Registrable Notes exchanged;
(viv) notify each Holder that any Security Registrable Note not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, interest but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all material respects with all applicable laws and regulations relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company shall:
(i) accept for exchange all Securities Registrable Notes or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and letter of transmittal;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Registrable Notes or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, Notes equal in principal amount to the principal amount of the Securities Notes as are surrendered by such Holder and accepted Holder. Interest on each Exchange Note issued pursuant to the Exchange Offer will accrue from the last date on which interest was paid or duly provided for exchangeon the Note surrendered in exchange therefor or, if no interest has been paid on such Note, from the date of original issue of such Note. To the extent not prohibited by any law judicial order, judgment, law, regulation or applicable interpretation of the staff of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, conditions other than the conditions referred to in Section 2(b)(i), (ii) and (iii) below and those conditions that the Exchange Offer does not violate are customary in similar exchange offers, except as may be required by applicable law or any applicable interpretation of the staff of the SEClaw. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) Notes who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) Notes for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, in the case of any Holder, representations that such Holder (i) it is not an affiliate Affiliate of the Issuer within the meaning of Rule 405 under the Securities ActCompany, or if (ii) it is such an affiliatenot a broker-dealer tendering Registrable Notes acquired directly from the Company, it will comply with (iii) the registration Notes being exchanged, and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received received, by it will be have been or are being acquired in the ordinary course of its business and that (iv) at the time of the commencement of the Exchange Offer Offer, it has no arrangement arrangements or understandings with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial PurchasersTrustee, 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 in order to facilitate the tender of Registrable Securities Notes in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandisMUTATIS MUTANDIS, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities Notes held by Initial Purchasers and Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register the Registrable Securities (Notes held by any other than Private Exchange Securities, if issued) Holder pursuant to Section 2(b) hereofof this Agreement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Aep Texas Central Co), Registration Rights Agreement (Aep Texas Central Co)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyExcept as set forth in Section 2(b) below, the Issuer Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (i) file cause to be filed with the SEC within 90 days Commission on or prior to the 90th day after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer relating to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC Commission on or prior to the 180th 270th day after the Closing TimeIssue Date, (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 20 Business Days (or longer if required by applicable law or extended by the Company, at the option of the Company) after the date notice of the Exchange Offer is mailed to the Holders to and including the closing of the Exchange Offer Offer, and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in complete the Exchange Offer not no later than 225 45 days after the Closing TimeExchange Offer Registration Statement becomes effective. Upon Promptly after the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities Notes for a like principal amount of Exchange Notes (other than Private Exchange Securities, if issued) for Exchange Securities (assuming provided that such Holder (w) is not an affiliate Affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and Company, (x) is not a broker-dealer an Initial Purchaser tendering Registrable Securities Notes acquired directly from the Issuer or an affiliate of Company on the Issuer for its own accountIssue Date, acquires (y) acquired the Exchange Securities Notes in the ordinary course of such Holder’s 's business and (z) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distribution (within the meaning of the Securities Act) of the Exchange Securities), with Notes) to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and or under state the securities or “blue sky” lawssky laws of any state of the United States or other jurisdiction. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable lawlaw or extended by the Company, at the option of the Company) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange OfferOffer with respect to Notes represented by a global certificate;
(iv) permit Holders to withdraw tendered Securities Notes at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice to Holders, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(v) notify each Holder that any Security Note not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior If any Initial Purchaser determines upon advice of its counsel that it is not eligible to consummation of participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Notes constituting any Securities acquired by it and such Securities have the status portion of an unsold allotment in its initial placement pursuant to the initial distributionPurchase Agreement, as soon as practicable upon receipt by the Issuer shall, upon the Company of a written request of from such Initial Purchaser, simultaneously with Purchaser prior to the delivery later of the consummation of the Exchange Securities in Offer and the Exchange Offer90th day after the Issue Date, the Company shall issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities Notes held by such Initial Purchaser, Purchaser a like aggregate principal amount of senior debt securities of the Issuer that are Company (the "Private Exchange Notes") to be issued under the Indenture with terms identical to the Exchange Notes (except that such securities Private Exchange Notes shall bear appropriate transfer restrictions) be subject to the transfer restrictions and legends relating to restrictions on ownership and transfer thereof without registration under the Securities Act that are applicable to the Notes). The Exchange Securities (Notes, the “Private Exchange Securities”)Notes and the Notes will vote and consent together on all matters as a single series under the Indenture 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. The Private Exchange Securities, if any, Notes shall be issued under the Indenture. The Private Exchange Securities shall be part of the same series asas the Exchange Notes, and the Issuer shall Company will use its reasonable best efforts to have cause the Private Exchange Securities bear CUSIP Service Bureau to issue the same CUSIP number for the Private Exchange Notes as for the applicable Exchange SecuritiesNotes issued pursuant to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and/or and, if applicable, the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Securities Notes or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Notes or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security Notes or Private Exchange SecurityNotes, as the case may beapplicable, equal in principal amount to the principal amount of the Securities Notes surrendered by such Holder Holder. Interest on each Exchange Note and accepted Private Exchange Note issued pursuant to the Exchange Offer and in the Private Exchange will accrue from the last date on which interest was paid or duly made available for exchangepayment on the Note surrendered in exchange therefor or, if no interest has been paid or duly made available for payment on such Note, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SECCommission, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, conditions other than the conditions referred to in Section 2(b)(i) and (ii) below and those conditions that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECare customary in similar exchange offers. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) Notes who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) Notes for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, representations that such Holder (i) it is not an affiliate Affiliate of the Issuer within the meaning of Rule 405 under the Securities ActCompany, or if (ii) it is such not an affiliateInitial Purchaser tendering Registrable Notes acquired directly from the Company on the Issue Date, it will comply with (iii) the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received by it will be were acquired in the ordinary course of its business and that (iv) at the time of the commencement of the Exchange Offer Offer, it has no arrangement arrangements or understandings with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial PurchasersTrustee, 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 in order to facilitate the tender of Registrable Securities Notes in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement (other than the provisions in this Section 2(a) and Section 2(e) that relate to the Exchange Offer) shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities Notes that are Private Exchange Securities, if issued, Notes and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register the Registrable Securities Notes (other than Private Exchange Securities, if issuedNotes) pursuant to held by any Holder under Section 2(b) hereofof this Agreement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Fiserv Inc), Registration Rights Agreement (Fiserv Inc)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, use its reasonable commercial efforts (iA) to file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under not later than 180 days following the original issuance of the Securities Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities, if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by within 270 days of the SEC on or prior to original issuance of the 180th day after the Closing TimeSecurities, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence unless the Exchange Offer and use its reasonable best efforts would not be permitted by applicable law or SEC policy, to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in cause the Exchange Offer not later than 225 to be consummated within 315 days after following the Closing Timeoriginal issuance of the Securities. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (A) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities 1933 Act and (an "Affiliate"), (B) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer Company or an affiliate one of the Issuer its Affiliates for its own account, acquires (C) acquired the Exchange Securities in the ordinary course of such Holder’s 's business and (D) at the time of the consummation of the Exchange Offer has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and without material restrictions under state the securities or “blue sky” lawslaws of a substantial portion of the several states of the United States. In connection with the Exchange Offer, the Issuer shallCompany will:
(iA) as promptly as practicable after the Exchange Offer Registration Statement has been declared effective by the SEC, mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iiB) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iiiC) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivD) notify each Holder that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address and in the manner specified in the notice prior to 5:00 p.m. (Eastern Time) on the last Business Day of the Exchange Period;
(E) permit Holders to (i) withdraw tendered Registrable Securities at any time prior to the close of business, New York time, 5:00 p.m. (Eastern Time) on the last Business Day business day 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchangedexchanged and (ii) tender Registrable Securities according to customary guaranteed delivery procedures if such Holder cannot deliver such Registrable Securities or complete the procedures relating thereto on a timely basis prior to 5:00 p.m. (Eastern Time) on the last business day of the Exchange Period;
(vF) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Broker Dealers as provided herein); and
(viG) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(iA) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(iiB) accept deliver or cause to be delivered all Registrable Securities accepted for exchange all Securities duly tendered pursuant to the Private ExchangeTrustee for cancellation; and
(iiiC) deliver, or cause the Trustee promptly to be deliveredauthenticate and deliver Exchange Securities, to the Trustee for cancellation all each Holder of Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, in a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer shall not be subject to any conditions, other than (A) that the Exchange Offer Offer, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (B) the valid tendering of Registrable Securities in accordance with the Exchange Offer, (C) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder (i) it is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities 1933 Act, or if (ii) it is such an affiliatenot a broker-dealer tendering Registrable Securities acquired directly from the Company or one of its Affiliates for its own account, it will comply with the registration and prospectus delivery requirements (iii) all of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that (iv) at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange Securities, 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 1933 Act available and (D) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offer which, in the Company's judgment, would reasonably be expected to impair the ability of the Company to proceed with the Exchange Offer. The Issuer Company shall use its reasonable commercial efforts to inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right right, subject to applicable securities laws, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation The Company shall use its reasonable commercial 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 1933 Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided, however, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by a Participating Broker-Dealer, such period shall terminate at the earlier to occur of (i) the expiration of 180 days following the Exchange Offer and (ii) the Expiration Date. The Company shall not be obligated to keep the Exchange Offer Registration Statement effective or to permit the use of any Prospectus forming a part of the Exchange Offer Registration Statement if (i) the Company determines, in accordance its reasonable judgment, upon advice of counsel that the continued effectiveness and use of the Exchange Offer Registration Statement would (x) require the disclosure of material information which the Company has a bona fide business reason for preserving as confidential or (y) interfere with this any financing, acquisition, corporate reorganization or other material transaction involving the Company or any of its subsidiaries; and provided, further, that the failure to keep the Exchange Offer Registration Statement effective and usable for offers and sales of Registrable Securities for such reasons shall last no longer than 45 consecutive calendar days or no more than an aggregate of 90 calendar days during any consecutive twelve-month period (whereafter a Registration Default, as hereinafter defined, shall occur) and (ii) the Company promptly thereafter complies with the requirements of Section 2(a3(L) hereof, if applicable; any such period during which the Company is excused from keeping the Exchange Offer Registration Statement effective and usable for offers and sales of Registrable Securities is referred to herein as a "Exchange Offer Suspension Period"; an Exchange Offer Suspension Period shall commence on and include the date that the Company gives notice to the Holders that the Exchange Offer Registration Statement is no longer effective or the Prospectus included therein is no longer usable for offers and sales of Registrable Securities as a result of the application of the proviso of the foregoing sentence, stating the reason therefor, and shall end on the earlier to occur of the date on which each seller of Registrable Securities covered by the Exchange Offer Registration Statement either receives the copies of the supplemented or amended Prospectus or is advised in writing by the Company that use of the Prospectus may be resumed. The Company acknowledges that pursuant to current interpretations by the SEC's staff of Section 5 of the 1933 Act, in the absence of applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Securities for Exchange Securities (an "Exchanging Dealer"), is required to deliver a prospectus containing information substantially in the provisions form set forth in (a) Annex A hereto, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of this Agreement shall continue to applythe Exchange Offer" section, mutatis mutandis, solely (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with respect to Registrable Securities that are Private Exchange Securities, if issued, and a sale of any such Exchange Securities held received by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) such Exchanging Dealer pursuant to Section 2(bthe Exchange Offer and to include in the Letter of Transmittal delivered pursuant to the Exchange Offer, the information set forth in Annex D hereto and (ii) hereofan Initial Purchaser that elects to sell Exchange Securities acquired in an exchange for Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Item 507 or Item 508 of Regulation S-K under the 1933 Act, as applicable, in connection with such sale.
Appears in 2 contracts
Samples: Registration Rights Agreement (Centerpoint Energy Inc), Registration Rights Agreement (Centerpoint Energy Inc)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and Holders, at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security 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 Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds any Securities acquired by it and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such the Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such the Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such the Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the Indenture or (ii) an indenture identical to the Indenture in all material respects and which, in either case, has been qualified under the TIA and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that 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 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, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as as, the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities 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 with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial PurchasersPurchaser, after consultation with the Trustee and the Initial PurchasersPurchaser, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers 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(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (News Corp), Registration Rights Agreement (Feg Holdings Inc)
Exchange Offer. To (a) After the extent not prohibited by any applicable law Company's Initial Public Offering, or applicable SEC policyin the event that, as of the date that is 180 days following the date hereof, neither the Company nor Inter*Act has commenced an Initial Public Offering, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost Company shall (i) file cause to be filed with the SEC within 90 days after Commission in no later than the Closing Time an Target Filing Date, a Registration Statement with respect to the Exchange Offer (the "Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesStatement"), (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective as soon as practicable after the Target Filing Date or such earlier filing date, but in no event later than the Target Effective Date and (iii) use best efforts to Consummate the Exchange Offer as soon as practicable after the Target Effective Date or such earlier effective date, but in no event later than the Target Consummation Date. The Exchange Offer will be registered under the Securities Act by on the SEC on appropriate form and duly registered or prior to the 180th day after the Closing Time, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 qualified under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under applicable state securities or “blue sky” sky laws and will comply with all applicable tender offer rules and regulations under the Exchange Act and state securities or blue sky laws. In connection with the Exchange Offer, the Issuer shall:
(i) The Company shall mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day 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 such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of who exchanges Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the an Exchange Offer will shall be required deemed to make certain customary representations in connection therewithhave represented, including representations and at the request of the Company shall provide a letter confirming, that (A) such Holder is not an affiliate "affiliate" of the Issuer Company within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that (B) any Exchange Securities to be received by it such Holder will be acquired in the ordinary course of business and that its business, (C) such Holder will not, at the time of the commencement Consummation of the Exchange Offer it has no Offer, have any arrangement or understanding with any Person or the intent to enter into any such arrangement or understanding to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities and (D) if such Holder is a broker-dealer, such Holder acquired its Registrable Securities for its own account as a result of market-making or other trading activities and such Holder will deliver a prospectus in connection with any resale of Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation Any Holder (x) who refuses to provide a letter requested in connection with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the an Exchange Offer is made, and pursuant to the Initial Purchasers shall have the right preceding sentence or (y) who refuses to contact such Holders and otherwise facilitate the tender of Registrable Securities participate in an Exchange Offer other than in the Exchange Offercircumstances described in Section 2(b)(i) or (ii) below, shall not be entitled to cause the Company to effect a "shelf" registration pursuant to Section 3 hereof. Upon consummation The Company agrees to supplement or amend the Registration Statement filed in respect of the Exchange Offer in accordance with this Section 2(a)to the extent required by applicable law, rules or regulations or by the provisions of this Agreement shall continue instructions applicable to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held the registration form used by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.Company for
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (Inter Act Systems Inc), Exchange and Registration Rights Agreement (Inter Act Systems Inc)
Exchange Offer. To If the extent Securities are not prohibited Freely Transferable by any the 366th calendar day following the Closing Date, then, unless the Exchange Offer shall not be permissible under applicable law or applicable SEC policy, the Issuer Company shall, for the benefit of the Holders use its commercially reasonable efforts to, (A) prepare and at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time SEC, an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to become or be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time1933 Act, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than be consummated on or prior to the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after 456th calendar day following the Closing TimeDate. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer Company shall:
(ia) mail as promptly as practicable after the commencement of the Exchange Offer to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time, on the last Business Day expiration of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company on a senior basis, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities, if any, 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, has been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that the Exchange Securities, the Private Exchange Securities and the Securities shall vote and consent together on all matters as one class of securities under the Indenture and that none of the Exchange Securities, the Private Exchange Securities or the Securities will have the right to vote or consent as a separate class on any matter under the Indenture. The If the customary procedures of the Depositary and the CUSIP Bureau allow, the Private Exchange Securities shall be of the same series as, as and the Issuer Company shall use its commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. The Company shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law last date on which interest was paid on the Registrable Securities surrendered in exchange therefor (or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete if the Exchange Offer as provided aboveSecurity is authenticated between a record date and an interest payment date, and shall comply with from such interest payment date) or, if no interest has been paid on the applicable requirements of Registrable Securities, from the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange OfferClosing Date. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law law, rule or regulation or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder (A) it is not an affiliate of the Issuer within the meaning of (as defined in Rule 405 under the Securities Act0000 Xxx) of the Company or, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act 1933 Act, to the extent applicable, that any ; (B) all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange Securities, (C) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (D) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for the Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities and (E) 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 1933 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 with respect to the Exchange Offer or the Private Exchange which, in the Company’s judgment, would reasonably be expected to impair the ability of the Company to proceed with the Exchange Offer or the Private Exchange. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Digitalglobe, Inc.), Registration Rights Agreement (DG Consents Sub, Inc.)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Company shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost cost, use its reasonable commercial efforts (iA) to file with the SEC SEC, within 90 120 days after the Closing Time an Settlement Date, the Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer with respect to the Holders Exchange Offer and the issuance and delivery to the Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities, if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act within 180 days following the Settlement Date (unless the Exchange Offer Registration Statement is reviewed by the SEC on or prior to SEC, in which case within 240 days following the 180th day after the Closing TimeSettlement Date), (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence unless the Exchange Offer and use its reasonable best efforts would not be permitted by applicable law or SEC policy, to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in cause the Exchange Offer not later than to be consummated within 225 days after following the Closing TimeSettlement Date (unless the Exchange Offer Registration Statement is reviewed by the SEC, in which case within 285 days following the Settlement Date). The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (A) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities 1933 Act and (an “Affiliate”), (B) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer Company or an affiliate one of the Issuer its Affiliates for its own account, acquires (C) acquired the Exchange Securities in the ordinary course of such Holder’s business and (D) at the time of the consummation of the Exchange Offer has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and without material restrictions under state the securities or “blue sky” lawslaws of a substantial portion of the several states of the United States. In connection with the Exchange Offer, the Issuer shallCompany will:
(iA) as promptly as practicable after the Exchange Offer Registration Statement has been declared effective by the SEC, mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iiB) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiiC) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivD) notify each Holder that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address and in the manner specified in the notice prior to 5:00 p.m. (Eastern Time) on the last Business Day of the Exchange Period;
(E) permit Holders to tender Registrable Securities according to customary guaranteed delivery procedures if such Holder cannot deliver such Registrable Securities or complete the procedures relating thereto on a timely basis prior to 5:00 p.m. (Eastern Time) on the last Business Day of the Exchange Period;
(F) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time, 5:00 p.m. (Eastern Time) on the last Business Day 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(vG) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Broker Dealers as provided herein); and
(viH) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(iA) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal, which shall be an exhibit thereto;
(iiB) accept deliver or cause to be delivered all Registrable Securities accepted for exchange all Securities duly tendered pursuant to the Private ExchangeTrustee for cancellation; and
(iiiC) deliver, or cause to be delivered, to the Trustee for cancellation all promptly to authenticate and deliver Exchange Securities or portions thereof to each Holder of Registrable Securities so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, in a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer shall not be subject to any conditions, other than (A) that the Exchange Offer Offer, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (B) the valid tendering of Registrable Securities in accordance with the Exchange Offer, (C) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder (i) it is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities 1933 Act, or if (ii) it is such an affiliatenot a broker-dealer tendering Registrable Securities acquired directly from the Company or one of its Affiliates for its own account, it will comply with the registration and prospectus delivery requirements (iii) all of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that (iv) at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange Securities, 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 1933 Act available and (D) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offer which, in the Company’s judgment, would reasonably be expected to impair the ability of the Company to proceed with the Exchange Offer. The Issuer Company shall use its reasonable commercial efforts to inform the Initial Purchasers, after consultation with the Trustee Purchasers and the Initial Purchasers, Dealer Managers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers and Dealer Managers shall have the right right, subject to applicable securities laws, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation The Company shall use its reasonable commercial 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 1933 Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided, however, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by a Participating Broker-Dealer, such period shall terminate at the earlier to occur of (i) the expiration of 180 days following the Exchange Offer and (ii) the Expiration Date. The Company shall not be obligated to keep the Exchange Offer Registration Statement effective or to permit the use of any Prospectus forming a part of the Exchange Offer Registration Statement if (i) the Company determines, in accordance its reasonable judgment, upon advice of counsel that the continued effectiveness and use of the Exchange Offer Registration Statement would (x) require the disclosure of material information which the Company has a bona fide business reason for preserving as confidential or (y) interfere with this any financing, acquisition, corporate reorganization or other material transaction involving the Company or any of its subsidiaries; and provided, further, that the failure to keep the Exchange Offer Registration Statement effective and usable for offers and sales of Registrable Securities for such reasons shall last no longer than 45 consecutive calendar days or no more than an aggregate of 90 calendar days during any consecutive twelve-month period (whereafter a Registration Default, as hereinafter defined, shall occur) and (ii) the Company promptly thereafter complies with the requirements of Section 2(a3(L) hereof, if applicable; any such period during which the Company is excused from keeping the Exchange Offer Registration Statement effective and usable for offers and sales of Registrable Securities is referred to herein as a “Exchange Offer Suspension Period”; an Exchange Offer Suspension Period shall commence on and include the date that the Company gives notice to the Holders that the Exchange Offer Registration Statement is no longer effective or the Prospectus included therein is no longer usable for offers and sales of Registrable Securities as a result of the application of the proviso of the foregoing sentence, stating the reason therefor, and shall end on the earlier to occur of the date on which each seller of Registrable Securities covered by the Exchange Offer Registration Statement either receives the copies of the supplemented or amended Prospectus or is advised in writing by the Company that use of the Prospectus may be resumed. The Company acknowledges that pursuant to current interpretations by the SEC’s staff of Section 5 of the 1933 Act, in the absence of applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Securities for Exchange Securities (an “Exchanging Dealer”), is required to deliver a prospectus containing information substantially in the provisions form set forth in (a) Annex A hereto, (b) Annex B hereto in the “Exchange Offer Procedures” section and the “Purpose of this Agreement shall continue to applythe Exchange Offer” section, mutatis mutandis, solely (c) Annex C hereto in the “Plan of Distribution” section of such prospectus in connection with respect to Registrable Securities that are Private Exchange Securities, if issued, and a sale of any such Exchange Securities held received by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) such Exchanging Dealer pursuant to Section 2(bthe Exchange Offer and to include in the Letter of Transmittal delivered pursuant to the Exchange Offer, the information set forth in Annex D hereto and (ii) hereofan Initial Purchaser that elects to sell Exchange Securities acquired in an exchange for Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Item 507 or Item 508 of Regulation S-K under the 1933 Act, as applicable, in connection with such sale.
Appears in 2 contracts
Samples: Registration Rights Agreement (Centerpoint Energy Resources Corp), Registration Rights Agreement (Centerpoint Energy Resources Corp)
Exchange Offer. To The Issuer shall (A) prepare and, as soon as practicable following the extent not prohibited by any applicable law or applicable SEC policyClosing Date, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under with respect to a proposed Exchange Offer and the Securities Act covering the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange SecuritiesNotes of each series, if issued) for a like principal amount of Exchange SecuritiesNotes of such series, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after not later than 180 calendar days following the Closing TimeDate, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in cause the Exchange Offer not later than 225 to be consummated within 210 calendar days after following the Closing TimeDate. The Exchange Notes will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) Notes for Exchange Securities Notes (assuming that such Holder (a) is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities Notes acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires (c) acquired the Exchange Securities Notes in the ordinary course of such Holder’s 's business and (d) has no arrangements or understandings with any Person person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with Notes) to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and without material restrictions under state the securities or “blue sky” lawslaws of a majority of the several states of the United States. In connection with the Exchange Offer, the Issuer shall:
(ia) mail to each Holder the Depositary a copy of the Prospectus forming part of the Exchange Offer Registration Statement, Statement together with an appropriate letter of transmittal and related documents;
(iib) use its reasonable best efforts to keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days business days after the date notice thereof is mailed to the Holders Depositary (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Securities Registrable Notes at any time prior to the close of business, New York time, 5:00 p.m. (Eastern Time) on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal, the principal amount of Securities Registrable Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(ve) notify each Holder the Depositary that any Security Registrable 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer shall:
(i) accept for exchange all Securities or portions thereof Registrable Notes duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly tendered pursuant deliver to the Private ExchangeTrustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof promptly to authenticate and deliver the respective Exchange Notes to each Holder of Registrable Notes so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, in a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount equal to the principal amount of the Securities surrendered by Registrable Notes of such Holder and so accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the The Issuer shall use its reasonable best efforts to complete keep the Exchange Offer as provided aboveRegistration Statement effective and to amend and supplement the Prospectus contained therein, and shall comply with in order to permit such Prospectus to be lawfully delivered by all Participating Broker-Dealers subject to the applicable prospectus delivery requirements of the Securities Act, 1933 Act for such period of time as such Participating Broker-Dealers must comply with such requirements in order to resell the Exchange Act Notes; provided, however, that (i) such period shall be the lesser of 90 days after the consummation of the Exchange Offer and other applicable laws the date on which all Participating Broker-Dealers have sold all Exchange Notes held by them (unless such period is extended pursuant to Section 3(k) below) and (ii) the Issuer shall make such Prospectus, and any amendment or supplement thereto, available to any such Participating Broker-Dealer for use in connection with any resale of any Exchange Notes for a period of the lesser of 90 days after the consummation of the Exchange OfferOffer and the date on which all Participating Broker-Dealers have sold all Exchange Notes held by them (unless such period is extended pursuant to Section 3(k) below). Interest on the Exchange Notes of each series will accrue from the most recent interest payment date to which interest has been paid on the respective Registrable Notes surrendered in exchange therefor or, if no interest has been paid on such Registrable Notes, from the Closing Date. The Exchange Offer shall not be subject to any conditions, other than (i) that the Exchange Offer Offer, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Notes in accordance with the Exchange Offer, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities Notes exchanged in the Exchange Offer will shall have represented (x) that all Exchange Notes to be required to make certain customary representations received by it shall be acquired in connection therewith, including representations the ordinary course of its business (y) that such Holder it is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and (z) that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange SecuritiesNotes 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 1933 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 with respect to the Exchange Offer which, in the judgment of the Issuer, would reasonably be expected to impair the ability of the Issuer to proceed with the Exchange Offer. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities Notes in the Exchange Offer. Upon consummation Each Holder of Registrable Notes who wishes to exchange such Registrable Notes for Exchange Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that (i) it is not an affiliate of the Issuer, (ii) the Exchange Notes to be received by it were acquired in the ordinary course of its business and (iii) at the time of the Exchange Offer, it has no arrangement with any person to participate in the distribution (within the meaning of the 0000 Xxx) of the Exchange Notes. Each Holder hereby acknowledges and agrees that any Participating Broker-Dealer and any such Holder using the Exchange Offer to participate in accordance with this Section 2(a), a distribution of the provisions Exchange Notes: (1) could not under SEC policy as in effect on the date of this Agreement shall continue rely on the position of the SEC enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC's letter to applyShearman & Sterling dated July 2, mutatis mutandis1993, solely and similar no-action letters (including any no-action letter obtained based on the representation in clause (i) above), and (2) must comply with respect to Registrable Securities the registration and prospectus delivery requirements of the 1933 Act in connection with the secondary resale transaction and that are Private Exchange Securitiessuch a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Items 507 and 508, as applicable, of Regulation S-K, the SEC standard instructions for filing forms under the 1933 Act, if issued, and the resales are of Exchange Securities held Notes obtained by Participating Broker-Dealers, and such Holder in exchange for Notes acquired by such Holder directly from the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofor an affiliate of the Issuer.
Appears in 2 contracts
Samples: Registration Rights Agreement (Metropolitan Edison Co), Registration Rights Agreement (Cleveland Electric Illuminating Co)
Exchange Offer. To (a) The Issuers and the extent not prohibited by any applicable law or applicable SEC policy, the Issuer Guarantors shall, for the benefit of the Holders and at the Issuer’s cost :
(i) prepare and file with the SEC within 90 days promptly after the Closing Time an Exchange Offer Registration Statement 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 covering with respect to a proposed offer (the offer by the Issuer "EXCHANGE OFFER") to the Holders to issue and deliver to such Holders, in exchange all of for the Registrable Securities (other than Private Exchange SecuritiesNotes, if issued) for a like aggregate principal amount of Exchange Securities, ;
(ii) use its their respective reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared become effective under the Securities Act by the SEC on or prior to the 180th day as promptly as practicable after the Closing Timefiling thereof, but in no event later than the Effectiveness Date;
(iii) use its their respective reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing consummation of the Exchange Offer and 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 their respective reasonable best efforts to to, on the earliest practicable date after the Exchange Offer Registration Statement is declared effective, but in no event later than 30 days thereafter, consummate the Exchange Offer and issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly Notes tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day 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 such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable .
(b) The Exchange Securities shall be issued under, and entitled to the benefits of, the Indenture or a trust indenture that is identical to the Indenture (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).
(c) In connection with the Exchange Offer, the Issuers and the Guarantors shall:
(i) mail to each Holder 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;
(ii) keep the Exchange Offer open for not less than 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law);
(iii) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(iv) 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 shall remain open; and
(v) otherwise comply with all laws applicable to the Exchange Offer.
(d) As soon as practicable after the close of the Exchange Offer, the Issuers and the Guarantors shall:
(i) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all Notes so accepted for exchange; and
(iii) 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 each Private Exchange SecuritiesSecurity will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if issued) who wishes to exchange such Registrable Securities (other than no interest has been paid on the Notes, from the date of original issue of the Notes. Each Exchange Security and each Private Exchange SecuritiesSecurity shall bear interest at the rate set forth thereon; provided, if issuedthat interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes surrendered in exchange therefor from time to time during such period.
(f) for Exchange Securities The Issuers and the Guarantors shall include within the Prospectus contained in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate Registration Statement a section entitled "Plan of Distribution," containing a summary statement of the Issuer within positions taken or policies made by the meaning staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 405 13d-3 under the Exchange Act) of Exchange Securities Act, or if it is received by such an affiliate, it will comply with broker-dealer in the registration and 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 to Act, including (without limitation) all Participating Brokers-Dealers, and include a statement describing the extent applicable, that any Exchange Securities to be received means 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 with any Person to participate in the distribution (within the meaning of the Securities Act) of which Participating Broker-Dealers may resell the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee Issuers and the Initial Purchasers, of the names and addresses of the Holders Guarantors shall use their respective reasonable best efforts to whom keep the Exchange Offer is made, Registration Statement continuously effective and to amend and supplement the Initial Purchasers shall have Prospectus to be lawfully delivered by all Persons subject to the right prospectus delivery requirement of the Securities Act for the shorter of : (i) such period of time as such Persons must comply with such requirements in order to contact such Holders resell the Exchange Securities and otherwise facilitate (ii) the tender of period ending when all Registrable Securities in the Exchange Offer. Upon consummation of covered by the Exchange Offer in accordance with this Section 2(aRegistration Statement have been sold pursuant thereto (the "APPLICABLE PERIOD"), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Majestic Investor Capital Corp), Registration Rights Agreement (Majestic Star Casino LLC)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, use its reasonable commercial efforts (iA) to file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under not later than 180 days following the original issuance of the Securities Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities, if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by within 270 days of the SEC on or prior to original issuance of the 180th day after the Closing TimeSecurities, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence unless the Exchange Offer and use its reasonable best efforts would not be permitted by applicable law or SEC policy, to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in cause the Exchange Offer not later than 225 to be consummated within 315 days after following the Closing Timeoriginal issuance of the Securities. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (A) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities 1933 Act and (an "Affiliate"), (B) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer Company or an affiliate one of the Issuer its Affiliates for its own account, acquires (C) acquired the Exchange Securities in the ordinary course of such Holder’s 's business and (D) at the time of the consummation of the Exchange Offer has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and without material restrictions under state the securities or “blue sky” lawslaws of a substantial portion of the several states of the United States. In connection with the Exchange Offer, the Issuer shallCompany will:
(iA) as promptly as practicable after the Exchange Offer Registration Statement has been declared effective by the SEC, mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iiB) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iiiC) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivD) notify each Holder that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address and in the manner specified in the notice prior to 5:00 p.m. (Eastern Time) on the last Business Day of the Exchange Period;
(E) permit Holders to (i) withdraw tendered Registrable Securities at any time prior to the close of business, New York time, 5:00 p.m. (Eastern Time) on the last Business Day 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchangedexchanged and (ii) tender Registrable Securities according to customary guaranteed delivery procedures if such Holder cannot deliver such Registrable Securities or complete the procedures relating thereto on a timely basis prior to 5:00 p.m. (Eastern Time) on the last Business Day of the Exchange Period;
(vF) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Broker Dealers as provided herein); and
(viG) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(iA) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(iiB) accept deliver or cause to be delivered all Registrable Securities accepted for exchange all Securities duly tendered pursuant to the Private ExchangeTrustee for cancellation; and
(iiiC) deliver, or cause the Trustee promptly to be deliveredauthenticate and deliver Exchange Securities, to the Trustee for cancellation all each Holder of Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, in a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer shall not be subject to any conditions, other than (A) that the Exchange Offer Offer, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (B) the valid tendering of Registrable Securities in accordance with the Exchange Offer, (C) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder (i) it is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities 1933 Act, or if (ii) it is such an affiliatenot a broker-dealer tendering Registrable Securities acquired directly from the Company or one of its Affiliates for its own account, it will comply with the registration and prospectus delivery requirements (iii) all of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that (iv) at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange Securities, 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 1933 Act available and (D) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offer which, in the Company's judgment, would reasonably be expected to impair the ability of the Company to proceed with the Exchange Offer. The Issuer Company shall use its reasonable commercial efforts to inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right right, subject to applicable securities laws, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation The Company shall use its reasonable commercial 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 1933 Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided, however, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by a Participating Broker-Dealer, such period shall terminate at the earlier to occur of (i) the expiration of 180 days following the Exchange Offer and (ii) the Expiration Date. The Company shall not be obligated to keep the Exchange Offer Registration Statement effective or to permit the use of any Prospectus forming a part of the Exchange Offer Registration Statement if (i) the Company determines, in accordance its reasonable judgment, upon advice of counsel that the continued effectiveness and use of the Exchange Offer Registration Statement would (x) require the disclosure of material information which the Company has a bona fide business reason for preserving as confidential or (y) interfere with this any financing, acquisition, corporate reorganization or other material transaction involving the Company or any of its subsidiaries; and provided, further, that the failure to keep the Exchange Offer Registration Statement effective and usable for offers and sales of Registrable Securities for such reasons shall last no longer than 45 consecutive calendar days or no more than an aggregate of 90 calendar days during any consecutive twelve-month period (whereafter a Registration Default, as hereinafter defined, shall occur) and (ii) the Company promptly thereafter complies with the requirements of Section 2(a3(L) hereof, if applicable; any such period during which the Company is excused from keeping the Exchange Offer Registration Statement effective and usable for offers and sales of Registrable Securities is referred to herein as a "Exchange Offer Suspension Period"; an Exchange Offer Suspension Period shall commence on and include the date that the Company gives notice to the Holders that the Exchange Offer Registration Statement is no longer effective or the Prospectus included therein is no longer usable for offers and sales of Registrable Securities as a result of the application of the proviso of the foregoing sentence, stating the reason therefor, and shall end on the earlier to occur of the date on which each seller of Registrable Securities covered by the Exchange Offer Registration Statement either receives the copies of the supplemented or amended Prospectus or is advised in writing by the Company that use of the Prospectus may be resumed. The Company acknowledges that pursuant to current interpretations by the SEC's staff of Section 5 of the 1933 Act, in the absence of applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Securities for Exchange Securities (an "Exchanging Dealer"), is required to deliver a prospectus containing information substantially in the provisions form set forth in (a) Annex A hereto, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of this Agreement shall continue to applythe Exchange Offer" section, mutatis mutandis, solely (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with respect to Registrable Securities that are Private Exchange Securities, if issued, and a sale of any such Exchange Securities held received by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) such Exchanging Dealer pursuant to Section 2(bthe Exchange Offer and to include in the Letter of Transmittal delivered pursuant to the Exchange Offer, the information set forth in Annex D hereto and (ii) hereofan Initial Purchaser that elects to sell Exchange Securities acquired in an exchange for Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Item 507 or Item 508 of Regulation S-K under the 1933 Act, as applicable, in connection with such sale.
Appears in 2 contracts
Samples: Registration Rights Agreement (Centerpoint Energy Inc), Registration Rights Agreement (Centerpoint Energy Houston Electric LLC)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and Holders, at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security 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 Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds any Securities acquired by it and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such the Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such the Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such the Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the Indenture or (ii) an indenture identical to the Indenture in all material respects and which, in either case, has been qualified under the TIA and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that 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 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, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as as, the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities 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 with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial PurchasersPurchaser, after consultation with the Trustee and the Initial PurchasersPurchaser, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers 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(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (News Corp), Registration Rights Agreement (News Corp)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost cost, (i) file cause to be filed with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its all commercially reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 270 days after the Closing Time, Issue Date and (iii) use its reasonable best efforts to have such Registration Statement remain effective until promptly offer the closing Exchange Notes in exchange for surrender of the Notes upon the effectiveness of the Exchange Offer Registration Statement, and (iv) commence consummate the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 within 315 days after the Closing TimeIssue Date. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, unless the Exchange Offer would not be permitted by applicable law or applicable interpretation of the staff of the SEC, it being understood that the objective of such Exchange Offer is to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Securities, if issued) for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange SecuritiesNotes) (any Holder meeting all such requirements, hereinafter an “Eligible Holder”), with and to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail furnish to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documentsdocuments (together, the “Notice”);
(ii) use all commercially reasonable efforts to keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice Notice thereof is mailed furnished to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities withdraw, at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, any Notes tendered for exchange by sending to the institution specified in the notice Notice, a telegram, telex, facsimile transmission or letter letter, received before aforesaid time, setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(v) notify each Holder by means of the Notice that any Security Note not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers Dealer-Managers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company shall:
(i) accept for exchange all Securities Notes or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Notes or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to the Depositary (or if, the Exchange Notes are in certificated form, each Holder), a new Exchange Security or Private Exchange Security, as the case may be, Notes equal in principal amount to the principal amount of the Securities Notes surrendered by such Holder and accepted for exchangeHolder. Interest on each Exchange Note issued pursuant to the Exchange Offer will accrue from the last date on which interest was paid on the Note surrendered in exchange therefor or, if no interest has been paid on such Note, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its all commercially reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act. Except as set forth herein, the Exchange Act and other applicable laws in connection with 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 SECSEC and that each Holder tendering Notes for exchange shall be an Eligible Holder. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, without limitation, representations that such Holder (i) it is not an affiliate of the Issuer within Company, (ii) the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee Each Holder hereby acknowledges and the Initial Purchasers, of the names agrees that any Participating Broker-Dealer and addresses of the Holders to whom any such Holder using the Exchange Offer is madeto participate in a distribution of the Exchange Notes: (1) could not under SEC policy as in effect on the date of this Agreement rely on the position of the SEC enunciated in Xxxxx & Xxxx LLP (available February 7, 1997), Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC’s letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters (including, without limitation, any no-action letter obtained based on the Initial Purchasers shall have representations in clause (i) above), and (2) must comply with the right to contact registration and prospectus delivery requirements of the Securities Act in connection with the secondary resale transaction and that such Holders a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Item 507 and otherwise facilitate 508, as applicable, of Regulation S-K, the tender SEC standard instructions for filing forms under the Securities Act, if the resales are of Registrable Securities Exchange Notes obtained by such Holder in exchange for Notes acquired by such Holder directly from the Exchange OfferCompany. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issuedpursuant to Section 2(b)(iii)) pursuant to Section 2(b) hereofof this Agreement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Oncor Electric Delivery Co LLC), Registration Rights Agreement (Oncor Electric Delivery Co LLC)
Exchange Offer. To The Co-Issuers and the extent not prohibited by any applicable law or applicable SEC policy, the Issuer Guarantors shall, for the benefit of the Holders and Holders, at the Issuer’s cost Co-Issuers’ and the Guarantors’ cost, (iA) prepare and file with the SEC within 90 no later than 270 days after the Closing Time Date, an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its their commercially reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective effective, under the Securities 1933 Act by the SEC on or prior to the 180th day not later than 365 days after the Closing TimeDate, (iiiC) use its their commercially reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and Offer, (ivD) commence use their commercially reasonable efforts to cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 400 days after the Closing Time. Upon Date, and (E) upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming provided that such Holder (a) is not an affiliate of the either Co-Issuer within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Co-Issuers for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Co-Issuers and the Guarantors shall:
(ia) mail as promptly as reasonably practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York 5:00 p.m. (Eastern time), on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. A Holder that wishes to exchange Registrable Securities in the Exchange Offer shall be required to (a) represent that (i) it is not an affiliate of either Co-Issuer within the meaning of Rule 405 under the 1933 Act, (ii) all Exchange Securities to be received by it shall be acquired in the ordinary course of its business and (iii) at the time of the consummation of the Exchange Offer it shall have no arrangement or understanding with any person to participate in the distribution (within the meaning of the 0000 Xxx) of the Exchange Securities and (b) make such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations. If such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, such broker-dealer will be required to acknowledge that it will deliver a Prospectus in connection with any resale of the Exchange Securities (and the Co-Issuers hereby agree and undertake to provide any such broker-dealer with such number of Prospectuses as such broker-dealer may reasonably request for such purpose). If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Co-Issuers upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Co-Issuers on a senior secured basis, that are identical (to the Exchange Securities, except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities restrictions (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions or “Additional Interest” provisions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that 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 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, as and the Issuer Co-Issuers shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities, if at any time the same is possible. The Co-Issuers shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. As soon as reasonably practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Co-Issuers shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange Securities 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 F-4 or other appropriate form under the 1933 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 with respect to the Exchange Offer or the Private Exchange which, in the Co-Issuers’ judgment, would reasonably be expected to impair the ability of the Co-Issuers to proceed with the Exchange Offer or the Private Exchange. If the Co-Issuers determine in their reasonable judgment that any of the foregoing conditions are not satisfied, the Co-Issuers 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 or the Private Exchange and accept all properly tendered Registrable Securities that have not been withdrawn (unless to do so could reasonably be expected to materially and adversely affect one or more tendering Holders in its capacity as such); provided that the foregoing shall not limit the right of Holders to receive, or the obligation of the Co-Issuers to pay, Additional Interest as provided by Section 2.5. The Issuer Co-Issuers shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Petrolera San Antonio S.A.), Registration Rights Agreement (Navios Maritime Holdings Inc.)
Exchange Offer. To the extent Unless not prohibited permitted by any applicable law or applicable SEC policy(after the Company has complied with the ultimate paragraph of this Section 1), the Issuer shallCompany shall prepare and, for on or prior to 90 days (such 90th day being a "Filing Deadline") after the benefit of date on which the Holders and at Initial Purchasers purchase the Issuer’s cost Offered Securities pursuant to the Purchase Agreement (i) the "Closing Date"), file with the SEC within 90 days after Securities and Exchange Commission (the Closing Time an "Commission") a registration statement (the "Exchange Offer Registration Statement Statement") on an appropriate form under the Securities Act covering of 1933, as amended (the "Securities Act"), with respect to a proposed offer by (the Issuer "Exchange Offer") to the Holders to exchange all of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Registrable Securities (other than Private Commission from participating in the Exchange Offer, to issue and deliver to such Holders, in exchange for the Offered Securities, if issued) for a like aggregate principal amount of debt securities of the Issuer and Guarantees of the Guarantors issued under the Indenture, identical in all material respects to the Offered Securities and registered under the Securities Act (the "Exchange Securities, Notes"). The Company shall (iii) use its reasonable best efforts to cause have such Exchange Offer Registration Statement to be declared effective by the Commission under the Securities Act by the SEC on or prior to the 180th day 180 days after the Closing TimeDate and (ii) unless the Exchange Offer would not be permitted by applicable law or Commission policy, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing Company will, following the declaration of the effectiveness of the Exchange Offer and Registration Statement (iva) commence the Exchange Offer and (b) use its reasonable best efforts to issue on or prior to 30 business days after the date on which the Exchange Securities Offer Registration Statement was declared effective by the Commission, Exchange Notes, in exchange for all Registrable Offered Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after (such period being called the Closing Time"Exchange Offer Registration Period"). Upon Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and of Transfer Restricted Securities electing to exchange Registrable the Offered Securities (other than Private Exchange Securities, if issued) for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own accountAct, acquires the Exchange Securities Notes in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning distribution of the Securities Act) Exchange Notes and is not prohibited by any law or policy of the Commission from participating in the Exchange SecuritiesOffer), with to trade such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Offered Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Notes (an "Exchanging Dealer"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Notes received by such Exchanging Dealer pursuant to the Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Offered Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. Subject to the next paragraph, for so long as any of the Securities (as defined below) are outstanding (but in no event later than 180 days after the Exchange Offer Registration Statement is declared effective). and if, in the reasonable judgment of the Initial Purchasers or their counsel, the Initial Purchasers or any of their affiliates (as defined in the rules and regulations under the Securities Act) are required to deliver a prospectus (any such prospectus, a "Market Making Prospectus") in connection with sales of the Securities, to (i) provide the Initial Purchasers and their affiliates, without charge, as many copies of the Market Making Prospectus as they may reasonably request, (ii) periodically amend the Offering Document (as defined in the Purchase Agreement) and the Exchange Offer Registration Statement so that the information contained therein complies with the requirements of Section 10(a) of the Securities Act, (iii) amend the Exchange Offer Registration Statement or amend or supplement the Market Making Prospectus when necessary to reflect any material changes in the information provided therein and promptly file such amendment or supplement with the Commission, (iv) provide the Initial Purchasers and their affiliates with copies of each amendment or supplement so filed and such other documents, including opinions of counsel and "comfort" letters, as they may reasonably request and (v) indemnify the Initial Purchasers and their affiliates with respect to the Market Making Prospectus and, if applicable, contribute to any amount paid or payable by the Purchasers and their affiliates in a manner substantially identical to that specified in [Section 7] of the Purchase Agreement (with appropriate modifications). The Company consents to the use, subject to the provisions of the Securities Act and the state securities or “blue sky” lawsBlue Sky laws of the jurisdictions in which the Offered Securities are offered by the Purchasers, of each Market Making Prospectus. The Company shall use 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 such persons must comply with such requirements in order to resell the Exchange Notes; provided, however, that (i) in the case where such prospectus and any -------- ------- amendment or supplement thereto must be delivered by an Exchanging Dealer or the Initial Purchasers, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Notes held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Notes for a period of not less than 180 days after the consummation of the Exchange Offer. If, upon consummation of the Exchange Offer, the Initial Purchasers hold Offered Securities acquired by them as part of their initial distribution, the Company, simultaneously with the delivery of the Exchange Notes pursuant to the Exchange Offer, shall issue and deliver to the Initial Purchasers upon the written request of the Initial Purchasers, in exchange (the "Private Exchange") for the Offered Securities held by the Initial Purchasers, a like principal amount of debt securities of the Issuer and Guarantees of the Guarantors issued under the Indenture and identical in all material respects to the Offered Securities (the "Private Exchange Notes"). The Offered Securities, the Exchange Notes and the Private Exchange Notes are herein collectively called the "Securities". In connection with the Exchange Offer, the Issuer Company shall:
(ia) mail to each Holder a copy of the Prospectus prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 25 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”)Holders;
(iiic) utilize the services of the Trustee a depositary for the Exchange OfferOffer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(ivd) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of business day on which 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 such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will Offer shall remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein)open; and
(vie) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securitieslaws. As soon as practicable after the close of the Exchange Offer and/or or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities 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 with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Icon Health & Fitness Inc), Registration Rights Agreement (Icon Health & Fitness Inc)
Exchange Offer. To The Co-Issuers and the extent not prohibited by any applicable law or applicable SEC policy, the Issuer Guarantors shall, for the benefit of the Holders and Holders, at the Issuer’s cost Co-Issuers’ and the Guarantors’ cost, (iA) prepare and file with the SEC within 90 no later than 210 days after the Closing Time Date, an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its their commercially reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective effective, under the Securities 1933 Act by the SEC on or prior to the 180th day not later than 330 days after the Closing TimeDate, (iiiC) use its their commercially reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and Offer, (ivD) commence use their commercially reasonable efforts to cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 395 days after the Closing Time. Upon Date, and (E) upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming provided that such Holder (a) is not an affiliate of the either Co-Issuer within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Co-Issuers for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Co-Issuers and the Guarantors shall:
(ia) mail as promptly as reasonably practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York 5:00 p.m. (Eastern time), on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. A Holder that wishes to exchange Registrable Securities in the Exchange Offer shall be required to (a) represent that (i) it is not an affiliate of either Co-Issuer within the meaning of Rule 405 under the 1933 Act, (ii) all Exchange Securities to be received by it shall be acquired in the ordinary course of its business and (iii) at the time of the consummation of the Exchange Offer it shall have no arrangement or understanding with any person to participate in the distribution (within the meaning of the 0000 Xxx) of the Exchange Securities and (b) make such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations. If such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, such broker-dealer will be required to acknowledge that it will deliver a Prospectus in connection with any resale of the Exchange Securities (and the Co-Issuers hereby agree and undertake to provide any such broker-dealer with such number of Prospectuses as such broker-dealer may reasonably request for such purpose). If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Co-Issuers upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Co-Issuers on a senior secured basis, that are identical (to the Exchange Securities, except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities restrictions (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions or “Additional Interest” provisions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that 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 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, as and the Issuer Co-Issuers shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities, if at any time the same is possible. The Co-Issuers shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. As soon as reasonably practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Co-Issuers shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange Securities 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 F-4 or other appropriate form under the 1933 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 with respect to the Exchange Offer or the Private Exchange which, in the Co-Issuers’ judgment, would reasonably be expected to impair the ability of the Co-Issuers to proceed with the Exchange Offer or the Private Exchange. If the Co-Issuers determine in their reasonable judgment that any of the foregoing conditions are not satisfied, the Co-Issuers 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 or the Private Exchange and accept all properly tendered Registrable Securities that have not been withdrawn (unless to do so could reasonably be expected to materially and adversely affect one or more tendering Holders in its capacity as such); provided that the foregoing shall not limit the right of Holders to receive, or the obligation of the Co-Issuers to pay, Additional Interest as provided by Section 2.5. The Issuer Co-Issuers shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Navios Maritime Acquisition CORP), Registration Rights Agreement (Navios Maritime Acquisition CORP)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost cost, (i) file cause to be filed with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its all commercially reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time, Target Registration Date and (iii) use its reasonable best efforts to have such Registration Statement remain effective until promptly offer the closing Exchange Notes in exchange for surrender of the Notes upon the effectiveness of the Exchange Offer Registration Statement, and (iv) commence consummate the Exchange Offer and use its reasonable best efforts on or prior to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeConsummation Date. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, unless the Exchange Offer would not be permitted by applicable law or applicable interpretation of the staff of the SEC, it being understood that the objective of such Exchange Offer is to enable each Holder eligible and electing to exchange Registrable Securities for a like principal amount of Exchange Notes (other than Private Exchange Securities, if issuedof the applicable series) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange SecuritiesNotes) (any Holder meeting all such requirements, hereinafter an “Eligible Holder”), with and to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail furnish to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documentsdocuments (together, the “Notice”);
(ii) use all commercially reasonable efforts to keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice Notice thereof is mailed furnished to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities withdraw, at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, any Notes tendered for exchange by sending to the institution specified in the notice Notice a telegram, telex, facsimile transmission or letter letter, received before aforesaid time, setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder Xxxxxx is withdrawing such Holder’s election to have such Securities Notes exchanged;
(v) notify each Holder by means of the Notice that any Security Note not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company shall:
(i) accept for exchange all Securities Notes or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Notes or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to the Depositary (or if, the Exchange Notes are in certificated form, each Holder), a new Exchange Security or Private Exchange Security, as Notes of the case may be, series and equal in principal amount to the respective series and principal amount of the Securities Notes surrendered by such Holder and accepted for exchangeXxxxxx. Interest on each Exchange Note issued pursuant to the Exchange Offer will accrue from the last date on which interest was paid on the Note surrendered in exchange therefor or, if no interest has been paid on such Note, from the Issue Date in the case of the 2028 Notes or March 15, 2023 in the case of the 2052 Notes. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its all commercially reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act. Except as set forth herein, the Exchange Act and other applicable laws in connection with 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 SECSEC and that each Holder tendering Notes for exchange shall be an Eligible Holder. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, without limitation, representations that such Holder (i) it is not an affiliate of the Issuer within Company, (ii) the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee Each Holder hereby acknowledges and the Initial Purchasers, of the names agrees that any Participating Broker-Dealer and addresses of the Holders to whom any such Holder using the Exchange Offer is madeto participate in a distribution of the Exchange Notes: (1) could not under SEC policy as in effect on the date of this Agreement rely on the position of the SEC enunciated in Brown & Wood LLP (available February 7, 1997), Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC’s letter to Xxxxxxxx & Sterling dated July 2, 1993, and similar no-action letters (including, without limitation, any no-action letter obtained based on the Initial Purchasers shall have representations in clause (i) above), and (2) must comply with the right to contact registration and prospectus delivery requirements of the Securities Act in connection with the secondary resale transaction and that such Holders a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Items 507 and otherwise facilitate 508, as applicable, of Regulation S-K, the tender SEC standard instructions for filing forms under the Securities Act, if the resales are of Registrable Securities Exchange Notes obtained by such Holder in exchange for Notes acquired by such Holder directly from the Exchange OfferCompany. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issuedpursuant to Section 2(b)(iii)) pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Samples: Registration Rights Agreement (Oncor Electric Delivery Co LLC)
Exchange Offer. To the extent Unless not prohibited permitted by any applicable law or applicable SEC policyinterpretations of the Commission’s staff, the Issuer shall, for the benefit of the Holders Company shall use commercially reasonable efforts to prepare and at the Issuer’s cost (i) file with the SEC within 90 days after Commission a registration statement (the Closing Time an “Exchange Offer Registration Statement Statement”) on an appropriate form under the Securities 1933 Act covering with respect to a proposed offer (the offer by the Issuer “Exchange Offer”) to the Holders to exchange all of Transfer Restricted Securities (as defined below in Section 7(e)), who are not prohibited by any law or policy of the Registrable Securities (other than Private Commission from participating in the Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, if issued) for a like aggregate principal amount of debt securities of the Company issued under the Indenture, of the same series as, and otherwise substantially identical in all material respects to, the Initial Securities and registered under the 1933 Act (the “Exchange Securities, (ii) ”). The Company shall use its commercially reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared become effective under the Securities 1933 Act by the SEC on or prior to the 180th day within 365 days after the Closing Time, (iii) use its reasonable best efforts to have such Time and will keep the Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (or longer, if required by applicable law) after the closing date notice of the Exchange Offer and is mailed to the Holders (iv) commence such period being called the “Exchange Period”). If the Company commences the Exchange Offer, the Company will be entitled to consummate the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than upon the Private Exchange Securities, if issued) properly tendered prior thereto in expiration of the Exchange Offer not later than 225 days after Period (provided that the Closing TimeCompany has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Exchange Offer). Upon Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such the Exchange Offer to enable each Holder eligible and of Transfer Restricted Securities electing to exchange Registrable its Initial Securities (other than Private Exchange Securities, if issued) for the same principal amount of Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Company as defined in Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account1933 Act Regulations, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning distribution of the Exchange Securities Act) and is not prohibited by any law or policy of the Commission from participating in the Exchange Securities), with Offer) to trade such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the 1933 Act. The Company acknowledges that, pursuant to current interpretations by the Commission’s staff of Section 5 of the 1933 Act, in the absence of an applicable exemption therefrom, (a) each Holder that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an “Exchanging Dealer”), is required to deliver a prospectus containing the information set forth in (i) Annex A hereto on the cover, (ii) Annex B hereto in the “The Exchange Offer” section and the “Purpose of the Exchange Offer” section, and (iii) Annex C hereto in the “Plan of Distribution” section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Exchange Offer and (b) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment is required to deliver a prospectus containing the information required by Item 507 or Item 508, as applicable, of Regulation S-K in connection with such sale. The Company 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 1933 Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided, however, that (a) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (b) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Exchange Offer. If, upon consummation of the Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the “Private Exchange”) for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under state the Indenture, of the same series as, and otherwise substantially identical in all material respects to, the Exchange Securities (the “Private Exchange Securities”) (except that such securities or shall bear legends as to the appropriate transfer restrictions). The Company shall make commercially reasonable efforts to cause the Private Exchange Securities to bear the same CUSIP number as the Exchange Securities. The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein sometimes called, collectively, the “blue sky” lawsSecurities”. In connection with the Exchange Offer, the Issuer Company shall:
(ia) mail to each Holder a copy of the Prospectus prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period the duration of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee a depositary for the Exchange OfferOffer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(ivd) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day business day 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 such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vie) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securitieslaws. As soon as practicable after the close of the Exchange Offer and/or or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities 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 with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Sierra Pacific Power Co)
Exchange Offer. To The Company, Finance Corp. and the extent not prohibited by any applicable law or applicable SEC policy, the Issuer Guarantors shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's and Finance Corp.'s cost, (iA) prepare and, as soon as practicable but not later than 45 days following the Closing Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 135 days of the Closing TimeDate, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence use its best efforts to cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 175 days after following the Closing TimeDate. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company, Finance Corp. and the Guarantors shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Company, Finance Corp. or any of the Guarantors within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer Company, Finance Corp. or an affiliate any of the Issuer Guarantors for its own account, acquires (c) acquired or will acquire the Exchange Securities in the ordinary course of such Holder’s 's business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer Company, Finance Corp. and the Guarantors shall:
(ia) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days business days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities and Guarantees exchanged;
(ve) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company and Finance Corp. upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such the Initial Purchaser, a like principal amount of debt securities of the Issuer Company and Finance Corp. on a senior subordinated basis, guaranteed by the Guarantors, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “"Private Exchange Securities”"). The Private Exchange Securities, if any, shall be issued under Securities and the Indenture. The Private Exchange Securities shall be of issued under (i) the same series as, Indenture or (ii) an indenture identical in all material respects to the Indenture and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company, Finance Corp. and the Guarantors shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due and valid tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.arrangement or understanding with any
Appears in 1 contract
Samples: Registration Rights Agreement (Lower Road Associates LLC)
Exchange Offer. To the extent not prohibited by any applicable law law, regulation or applicable SEC policyinterpretation by the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (i) file cause to be filed with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared become effective under the Securities Act by the SEC on or prior to the 180th day not later than 330 days after the Closing Time, Issue Date and (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of promptly offer the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities Bonds in exchange for all Registrable Securities (other than surrender of the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon Bonds upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence and use its reasonable efforts to consummate the Exchange Offer, it being Offer within 360 days after the Issue Date. It is understood that the objective of such Exchange Offer is to enable each Holder eligible and so electing to (x) exchange Registrable Securities (other than Private Bonds for a like principal amount of Exchange Securities, if issued) for Exchange Securities Bonds (assuming that such Holder is not an affiliate Affiliate of the Issuer within the meaning of Rule 405 under the Securities Act Company and is not a broker-dealer tendering Registrable Securities Bonds acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities Bonds (and acquired the Registrable Bonds) in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange SecuritiesBonds) (any Holder meeting all such requirements, hereinafter an "Eligible Holder"), with and (y) transfer such Exchange Securities, Bonds from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” lawssky laws of U.S. jurisdictions. In connection with the Exchange Offer, the Issuer Company shall:
(i) deliver or mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documentsdocuments (together, the "Notice");
(ii) use its reasonable efforts to keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice Notice thereof is first mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize (iii)utilize the services of the Trustee Depositary for the Exchange OfferOffer with respect to Bonds represented by a global certificate;
(iv) permit Holders to withdraw Registrable Bonds tendered Securities for exchange at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice Notice a telegram, telex, facsimile transmission or letter letter, received before the aforesaid time, setting forth the name of such Holder, the principal amount of Securities delivered Registrable Bonds tendered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Registrable Bonds exchanged;
(v) notify each Holder by means of the Notice that any Security Bond not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all material respects with all applicable laws and regulations relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company shall:
(i) accept for exchange all Securities Registrable Bonds or portions principal amount thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the Notice;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Registrable Bonds or portions principal amount thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each the Depositary (or, if the Exchange Bonds are in certificated form, the applicable Holder), a new Exchange Security or Private Exchange Security, as the case may be, Bonds equal in principal amount to the principal amount of the Securities Registrable Bonds surrendered for exchange by such Holder and accepted Holder. Interest on each Exchange Bond issued pursuant to the Exchange Offer will accrue from the last date on which interest was paid or duly provided for exchangeon the Bond surrendered in exchange therefor or, if no interest has been paid on such Bond, from the Issue Date. To the extent not prohibited by any law law, regulation or applicable interpretation of by the staff of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law any law, regulation or any applicable interpretation of by the staff of the SECSEC and that each Holder tendering Registrable Bonds for exchange shall be an Eligible Holder and those conditions that are customary in similar exchange offers. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) Bonds who wishes to exchange such Registrable Securities Bonds (other than Private Exchange Securities, if issuedor any principal amount thereof) for Exchange Securities Bonds in the Exchange Offer will be required required, as a condition to participating in the Exchange Offer, to make certain customary representations in connection therewith, including representations that such Holder (i) it is not an affiliate Affiliate of the Issuer within the meaning of Rule 405 under the Securities ActCompany, or if (ii) it is such an affiliatenot a broker-dealer tendering Registrable Bonds acquired directly from the Company, it will comply with (iii) the registration Bonds being exchanged, and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Bonds to be received by it it, have been or will be acquired in the ordinary course of its business and that (iv) at the time of the commencement of the Exchange Offer 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 SecuritiesBonds. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee Each Holder hereby acknowledges and the Initial Purchasers, of the names agrees that any Participating Broker-Dealer and addresses of the Holders to whom any Holder using the Exchange Offer is madeto participate in a distribution of the Exchange Bonds: (1) could not, under SEC policy as in effect on the date of this Agreement, rely on the position of the SEC enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC's letter to Shearman & Sterling (available July 2, 1993), and similar no-action letters (including any no-action letter obtained based on the Initial Purchasers shall have representations in clause (i) above), and (2) must comply with the right to contact registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction and that such Holders a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Items 507 and otherwise facilitate 508, as applicable, of Regulation S-K, the tender SEC standard instructions for filing forms under the Securities Act, if the resales are of Registrable Securities Exchange Bonds obtained by such Holder in exchange for Bonds acquired by such Holder directly from the Exchange OfferCompany. Upon consummation of the Exchange Offer in accordance with this Section 2(a), ):
(i) any Eligible Holder that failed to participate in such Exchange Offer shall not be entitled to include any of its Registrable Bonds in any Shelf Registration Statement pursuant to this Agreement;
(ii) the provisions of this Agreement (other than those relating to an Exchange Offer Registration) shall continue to apply, mutatis mutandis, solely with respect solely to Registrable Securities that are Private Bonds or Exchange Securities, if issued, and Exchange Securities Bonds held by the Initial Purchasers and the Participating Broker-Dealers, and ; and
(iii) the Issuer Company shall have no further obligation to register any Registrable Securities (other than Private Exchange Securities, if issued) Bonds pursuant to Section 2(b) hereofof this Agreement (other than pursuant to Sections 2(b)(iii) and (iv)).
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyExcept as set forth in Section 2(b) below, the Issuer Operating Partnership and the Guarantors shall, for the benefit of the Holders and Holders, at the Issuer’s cost Operating Partnership's and the Guarantors' cost, (i) prepare and file with the SEC within as soon as practicable after the Closing Date, but in no event later than 90 calendar days after the Closing Time Date, an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer relating to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day as soon as practicable after the Closing TimeDate, but in no event later than 180 calendar days after the Closing Date, (iii) provided such Exchange Offer Registration Statement has been declared effective under the Securities Act by the SEC, use its commercially reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing completion of the Exchange Offer Offer, and (iv) provided such Exchange Offer Registration Statement has been declared effective under the Securities Act by the SEC, commence the Exchange Offer and use its reasonable best efforts keep the Exchange Offer open for not less than 20 Business Days, or longer if required by applicable law, after the date on which such Registration Statement was declared effective by the SEC (such period referred to herein as the "Exchange Period") and at the termination thereof issue Exchange Securities Notes in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly Notes tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer Operating Partnership and the Guarantors shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep use the services of the Depositary for the Exchange Offer open for acceptance for with respect to Notes represented by a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”)global certificate;
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities Registrable Notes at any time prior to the close of business, New York City time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice to Holders, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Registrable Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s its election to have such Securities Registrable Notes exchanged;
(viv) notify each Holder that any Registrable Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, interest but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all material respects with all applicable laws and regulations relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Operating Partnership and the Guarantors shall:
(i) accept for exchange all Securities Registrable Notes or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and letter of transmittal;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Registrable Notes or portions thereof so accepted for exchange by the Issuer, and Operating Partnership; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, Notes equal in principal amount to the principal amount of the Securities Registrable Notes as are surrendered by such Holder and accepted Holder. Interest on each Exchange Note issued pursuant to the Exchange Offer will accrue from the last date on which interest was paid or duly provided for exchangeon the Note surrendered in exchange therefor or, if no interest has been paid on such Note, from the date of original issue of such Note. To the extent not prohibited by any law judicial order, judgment, law, regulation or applicable interpretation of the staff of the SEC, the Issuer Operating Partnership and the Guarantors shall use its commercially reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, conditions other than the conditions referred to in Section 2(b)(i) and (ii) below and those conditions that the Exchange Offer does not violate are customary in similar exchange offers, except as may be required by applicable law or any applicable interpretation of the staff of the SEClaw. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) Notes who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) Notes for Exchange Securities Notes in the Exchange Offer will be required required, as a condition to participating in the Exchange Offer, to make certain customary representations in connection therewith, including including, in the case of any Holder, representations that such Holder (i) it is not an affiliate Affiliate of the Issuer within Operating Partnership or the meaning of Rule 405 under the Securities ActGuarantors, or if (ii) it is such an affiliatenot a broker-dealer tendering Registrable Notes acquired directly from the Operating Partnership or the Guarantors, it will comply with (iii) the registration Notes being exchanged, and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received received, by it will be have been or are being acquired in the ordinary course of its business and that (iv) at the time of the commencement of the Exchange Offer Offer, it has no arrangement arrangements or understandings with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer Operating Partnership and the Guarantors shall inform the Initial Purchasers, after consultation with the Trustee and the Initial PurchasersTrustee, 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 in order to facilitate the tender of Registrable Securities Notes in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities Notes held by Initial Purchasers and Participating Broker-Dealers, and the Issuer Operating Partnership and the Guarantors shall have no further obligation to register the Registrable Securities (Notes held by any other than Private Exchange Securities, if issued) Holder pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Samples: Registration Rights Agreement (Sunoco Logistics Partners Lp)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyThe Company shaxx, the Issuer shall, for xxx the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, use its reasonable commercial efforts (iA) to file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under not later than 180 days following the original issuance of the Securities Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities, if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by within 270 days of the SEC on or prior to original issuance of the 180th day after the Closing TimeSecurities, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence unless the Exchange Offer and use its reasonable best efforts would not be permitted by applicable law or SEC policy, to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in cause the Exchange Offer not later than 225 to be consummated within 315 days after following the Closing Timeoriginal issuance of the Securities. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (A) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities 1933 Act and (an "Affiliate"), (B) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer Company or an affiliate one of the Issuer its Affiliates for its own account, acquires (C) acquired the Exchange Securities in the ordinary course of such Holder’s 's business and (D) at the time of the consummation of the Exchange Offer has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and without material restrictions under state the securities or “blue sky” lawslaws of a substantial portion of the several states of the United States. In connection with the Exchange Offer, the Issuer shallCompany will:
(iA) as promptly as practicable after the Exchange Offer Registration Statement has been declared effective by the SEC, mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iiB) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iiiC) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivD) notify each Holder that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address and in the manner specified in the notice prior to 5:00 p.m. (Eastern Time) on the last Business Day of the Exchange Period;
(E) permit Holders to (i) withdraw tendered Registrable Securities at any time prior to the close of business, New York time, 5:00 p.m. (Eastern Time) on the last Business Day business day 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchangedexchanged and (ii) tender Registrable Securities according to customary guaranteed delivery procedures if such Holder cannot deliver such Registrable Securities or complete the procedures relating thereto on a timely basis prior to 5:00 p.m. (Eastern Time) on the last business day of the Exchange Period;
(vF) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Broker Dealers as provided herein); and
(viG) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(iA) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(iiB) accept deliver or cause to be delivered all Registrable Securities accepted for exchange all Securities duly tendered pursuant to the Private ExchangeTrustee for cancellation; and
(iiiC) deliver, or cause the Trustee promptly to be deliveredauthenticate and deliver Exchange Securities, to the Trustee for cancellation all each Holder of Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, in a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer shall not be subject to any conditions, other than (A) that the Exchange Offer Offer, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (B) the valid tendering of Registrable Securities in accordance with the Exchange Offer, (C) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder (i) it is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities 1933 Act, or if (ii) it is such an affiliatenot a broker-dealer tendering Registrable Securities acquired directly from the Company or one of its Affiliates for its own account, it will comply with the registration and prospectus delivery requirements (iii) all of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that (iv) at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities 1933 Act) of the Exchange Securities, and shall have made such other xxxxxxxxtations 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 1933 Act available and (D) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offer which, in the Company's judgment, would reasonably be expected to impair the ability of the Company to proceed with the Exchange Offer. The Issuer Company shall use its reasonable commercial efforts to inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right right, subject to applicable securities laws, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation The Company shall use its reasonable commercial 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 1933 Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided, however, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by a Participating Broker-Dealer, such period shall terminate at the earlier to occur of (i) the expiration of 180 days following the Exchange Offer and (ii) the Expiration Date. The Company shall not be obligated to keep the Exchange Offer Registration Statement effective or to permit the use of any Prospectus forming a part of the Exchange Offer Registration Statement if (i) the Company determines, in accordance its reasonable judgment, upon advice of counsel that the continued effectiveness and use of the Exchange Offer Registration Statement would (x) require the disclosure of material information which the Company has a bona fide business reason for preserving as confidential or (y) interfere with this any financing, acquisition, corporate reorganization or other material transaction involving the Company or any of its subsidiaries; and provided, further, that the failure to keep the Exchange Offer Registration Statement effective and usable for offers and sales of Registrable Securities for such reasons shall last no longer than 45 consecutive calendar days or no more than an aggregate of 90 calendar days during any consecutive twelve-month period (whereafter a Registration Default, as hereinafter defined, shall occur) and (ii) the Company promptly thereafter complies with the requirements of Section 2(a3(L) hereof, if applicable; any such period during which the Company is excused from keeping the Exchange Offer Registration Statement effective and usable for offers and sales of Registrable Securities is referred to herein as a "Exchange Offer Suspension Period"; an Exchange Offer Suspension Period shall commence on and include the date that the Company gives notice to the Holders that the Exchange Offer Registration Statement is no longer effective or the Prospectus included therein is no longer usable for offers and sales of Registrable Securities as a result of the application of the proviso of the foregoing sentence, stating the reason therefor, and shall end on the earlier to occur of the date on which each seller of Registrable Securities covered by the Exchange Offer Registration Statement either receives the copies of the supplemented or amended Prospectus or is advised in writing by the Company that use of the Prospectus may be resumed. The Company acknowledges that pursuant to current interpretations by the SEC's staff of Section 5 of the 1933 Act, in the absence of applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Securities for Exchange Securities (an "Exchanging Dealer"), is required to deliver a prospectus containing information substantially in the provisions form set forth in (a) Annex A hereto, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of this Agreement shall continue to applythe Exchange Offer" section, mutatis mutandis, solely (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with respect to Registrable Securities that are Private Exchange Securities, if issued, and a sale of any such Exchange Securities held received by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) such Exchanging Dealer pursuant to Section 2(bthe Exchange Offer and to include in the Letter of Transmittal delivered pursuant to the Exchange Offer, the information set forth in Annex D hereto and (ii) hereofan Initial Purchaser that elects to sell Exchange Securities acquired in an exchange for Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Item 507 or Item 508 of Regulation S-K under the 1933 Act, as applicable, in connection with such sale.
Appears in 1 contract
Samples: Registration Rights Agreement (Centerpoint Energy Resources Corp)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (i) unless the Exchange Offer would not be permitted by applicable law or SEC policy, file with the SEC within 90 30 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities Transfer Restricted Notes (other than Private Exchange Securities, if issuedNotes (as defined below)) for a like principal amount of Exchange SecuritiesNotes, (ii) unless the Exchange Offer would not be permitted by applicable law or SEC policy, use its reasonable best efforts to cause have such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day not later than 120 days after the Closing TimeTime (the "TARGET EFFECTIVENESS DATE"), (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) unless the Exchange Offer would not be permitted by applicable law or SEC policy, commence the Exchange Offer and use its reasonable best efforts to issue issue, on or prior to the 150th day after the Closing Time (the "TARGET CONSUMMATION Date"), Exchange Securities Notes in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly Notes tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to participate in the Exchange Offer to exchange Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities Transfer Restricted Notes acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with Notes) and to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”"EXCHANGE PERIOD");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities Notes at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(v) notify each Holder that any Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities Notes acquired by it them and such Securities have the status of an unsold allotment not having been sold in the initial distribution, the Issuer shall, Company upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities Notes in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”"PRIVATE EXCHANGE") for the Securities Notes held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities Notes (the “"PRIVATE EXCHANGE NOTES"). The Exchange Notes and the Private Exchange Securities”)Notes shall be issued under (i) the Indenture or (ii) an indenture identical to all material respects to the Indenture and that, in either case, 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. The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities Notes shall be of the same series as, as and the Issuer Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities Notes bear the same CUSIP number as the Exchange Notes. The Company shall not have any liability under this Agreement solely as a result of such Private Exchange Notes not bearing the same CUSIP number as the Exchange Notes. 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 that might materially impair the ability of the Company to proceed with the Exchange SecuritiesOffer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company deems necessary for the consummation of the Exchange Offer or Private Exchange. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Securities Transfer Restricted Notes or portions thereof properly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal that is an exhibit thereto;
(ii) accept for exchange all Securities duly Notes properly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Transfer Restricted Notes or portions thereof so accepted for exchange by the IssuerCompany, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security Note or Private Exchange SecurityNote, as the case may be, equal in principal amount to the principal amount of the Securities Transfer Restricted Notes surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, above and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities 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 with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities Transfer Restricted Notes in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandisMUTATIS MUTANDIS, solely with respect to Registrable Securities Transfer Restricted Notes that are Private Exchange Securities, if issued, Notes and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register Registrable Securities Transfer Restricted Notes (other than Private Exchange Securities, if issuedNotes) pursuant to Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Mandalay Resort Group)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyExcept as set forth in Section 2(b) below, the Issuer Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, use commercially reasonable efforts to (i) file with the SEC within 90 calendar days after the Closing Time Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer relating to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 calendar days after the Closing TimeDate, and (iii) use its reasonable best efforts to have provided such Exchange Offer Registration Statement remain has been declared effective until under the closing of Securities Act by the Exchange Offer and (iv) SEC, commence the Exchange Offer and use its reasonable best efforts keep the Exchange Offer open for not less than 30 days, or longer if required by applicable law, after the date on which such Registration Statement was declared effective by the SEC (such period referred to issue herein as the "Exchange Securities Period") and at the termination thereof issue, Exchange Notes in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly Notes tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness Each Holder of Registrable Notes to be exchanged in the Exchange Offer Registration Statementshall be required, the Issuer shall promptly commence as a condition to participating in the Exchange Offer, to represent that it being acquired the objective Exchange Notes in the ordinary course of such Exchange Offer to enable each Holder eligible Holder's business and electing to exchange Registrable Securities that it (other than Private Exchange Securities, if issuedi) for Exchange Securities (assuming that such Holder is not an affiliate Affiliate of the Issuer within Company, (ii) does not hold any Notes to be exchanged for Exchange Notes in the meaning Exchange Offer that were acquired other than in the ordinary course of Rule 405 under the Securities Act and business, (iii) is not a broker-dealer tendering Registrable Securities Notes acquired directly from the Issuer or an affiliate Company, (iv) at the time of the Issuer for its own accountExchange Offer, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” lawsNotes. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee Depositary for the Exchange OfferOffer with respect to Notes represented by a global certificate;
(iviii) permit Holders to withdraw tendered Securities Registrable Notes at any time prior to the close of business, New York City time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice to Holders, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Registrable Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Registrable Notes exchanged;
(viv) notify each Holder that any Registrable Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, interest but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all material respects with all applicable laws and regulations relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company shall:
(i) accept for exchange all Securities Registrable Notes or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and letter of transmittal;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Registrable Notes or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, Notes equal in principal amount to the principal amount of the Securities Notes as are surrendered by such Holder and accepted Holder. Interest on each Exchange Note issued pursuant to the Exchange Offer will accrue from the last date on which interest was paid or duly provided for exchangeon the Note surrendered in exchange therefor or, if no interest has been paid on such Note, from the date of original issue of such Note. To the extent not prohibited by any law judicial order, judgment, law, regulation or applicable interpretation of the staff of the SEC, the Issuer Company shall use its commercially reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, conditions other than the conditions referred to in Section 2(b)(i) and (ii) below and those conditions that the Exchange Offer does not violate are customary in similar exchange offers, except as may be required by applicable law or any applicable interpretation of the staff of the SEClaw. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) Notes who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) Notes for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, in the case of any Holder, representations that such Holder (i) it is not an affiliate Affiliate of the Issuer within the meaning of Rule 405 under the Securities ActCompany, or if (ii) it is such an affiliatenot a broker-dealer tendering Registrable Notes acquired directly from the Company, it will comply with (iii) the registration Notes being exchanged, and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received received, by it will be have been or are being acquired in the ordinary course of its business and that (iv) at the time of the commencement of the Exchange Offer Offer, it has no arrangement arrangements or understandings with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial PurchasersTrustee, 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 in order to facilitate the tender of Registrable Securities Notes in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities Notes held by Initial Purchasers and Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register the Registrable Securities (Notes held by any other than Private Exchange Securities, if issued) Holder pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Samples: Registration Rights Agreement (Baltimore Gas & Electric Co)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail deliver to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day 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 such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities 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 with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Twenty-First Century Fox, Inc.)
Exchange Offer. To If, on the extent Outside Date, all of the Securities are not prohibited by any applicable law or applicable SEC policyFreely Tradable, the Issuer Co-Issuers and the Guarantors shall, for the benefit of the Holders and Holders, at the Issuer’s cost Co-Issuers’ and the Guarantors’ cost, (iA) prepare and file with the SEC within 90 days no later than the 30th day after the Closing Time Outside Date, an Exchange Offer Registration Statement on an appropriate form under with respect to a proposed Exchange Offer and the Securities Act covering the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its their commercially reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective effective, under the Securities 1933 Act by not later than the SEC on or prior to the 180th 120th day after the Closing TimeOutside Date, (iiiC) use its their commercially reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and Offer, (ivD) commence use their commercially reasonable efforts to cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 days the 150th day after the Closing Time. Upon Outside Date, and (E) upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming provided that such Holder (a) is not an affiliate of the either Co-Issuer within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Co-Issuers for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with If all of the Securities are Freely Tradable as of the Outside Date, then the Co-Issuers and the Guarantors shall not be required to prepare, file or cause to be declared effective the Exchange OfferOffer Registration Statement or consummate the Exchange Offer and shall not be liable to the Initial Purchasers, the Issuer Holders or any other Person for any failure to do so. If an Exchange Offer Registration Statement is filed and declared effective, pursuant to the foregoing paragraph, the Co-Issuers and the Guarantors shall:
(ia) mail as promptly as reasonably practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York 5:00 p.m. (Eastern time), on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. A Holder that wishes to exchange Registrable Securities in the Exchange Offer shall be required to (a) represent that (i) it is not an affiliate of either Co-Issuer within the meaning of Rule 405 under the 1933 Act, (ii) all Exchange Securities to be received by it shall be acquired in the ordinary course of its business and (iii) at the time of the consummation of the Exchange Offer it shall have no arrangement or understanding with any person to participate in the distribution (within the meaning of the 1000 Xxx) of the Exchange Securities and (b) make such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations. If such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, such broker-dealer will be required to acknowledge that it will deliver a Prospectus in connection with any resale of the Exchange Securities (and the Co-Issuers hereby agree and undertake to provide any such broker-dealer with such number of Prospectuses as such broker-dealer may reasonably request for such purpose). If, after the Outside Date and prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Co-Issuers upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Co-Issuers on a senior secured basis, that are identical (to the Exchange Securities, except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities restrictions (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions or “Additional Interest” provisions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that 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 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, as and the Issuer Co-Issuers shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities, if at any time the same is possible. The Co-Issuers shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. As soon as reasonably practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Co-Issuers shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act1000 Xxx) of the Exchange Securities 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 F-4 or other appropriate form under the 1933 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 with respect to the Exchange Offer or the Private Exchange which, in the Co-Issuers’ judgment, would reasonably be expected to impair the ability of the Co-Issuers to proceed with the Exchange Offer or the Private Exchange. If the Co-Issuers determine in their reasonable judgment that any of the foregoing conditions are not satisfied, the Co-Issuers 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 or the Private Exchange and accept all properly tendered Registrable Securities that have not been withdrawn (unless to do so could reasonably be expected to materially and adversely affect one or more tendering Holders in its capacity as such); provided that the foregoing shall not limit the right of Holders to receive, or the obligation of the Co-Issuers to pay, Additional Interest as provided by Section 2.5. The Issuer Co-Issuers shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Navios Maritime Holdings Inc.)
Exchange Offer. To the extent not prohibited by any applicable law or -------------- applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company and the Trust shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, use its best efforts to (i) file cause to be filed with the SEC within 90 150 days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeIssue Date, and (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (or longer if required by applicable law) after the closing date notice of the Exchange Offer and (iv) commence is mailed to the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeHolders. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Debentures or a like liquidation amount of Exchange Capital Securities, if issued) for together with the Exchange Securities Guarantee, as applicable (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company and the Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange -------- Period”");
; ------ (iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day 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 such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities 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 with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To Each of the extent not prohibited by any applicable law or applicable SEC policy, Company and the Issuer Guarantor shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost cost, (iA) use its reasonable best efforts to file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement within 180 days on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 270 days of the Closing TimeDate, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and Offer, (ivD) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in cause the Exchange Offer to be consummated not later than 225 300 days after following the Closing TimeDate and (E) for a period of 90 days following the consummation of the exchange offer, to make available a prospectus meeting the requirements of the 1933 Act to any such participating broker-dealer for use in connection with any resale of any exchange notes acquired in the exchange offer. If the Company has not consummated the Exchange Offer within 300 days of the Closing Date, then the Company will file as promptly as practicable a Shelf Registration Statement (as described in Section 2.2 hereof). The Exchange Securities will be issued under the Registrar and Transfer Agency Agreement. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Guarantor shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer within the meaning of “affiliate” (as such term is defined in Rule 405 under the Securities Act and 0000 Xxx) of the Company or the Guarantor (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer Company or an affiliate of the Issuer Guarantor for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and or under state securities or “blue sky” sky laws. Exchange Securities will be issued under the Exchange Offer as evidence of the same continuing rights and preferences under the Preferred Securities and the Guarantee. Under no circumstances will the surrender of the Preferred Securities and the issue of Exchange Securities constitute new securities or obligate the Company and the Guarantor to redeem the Preferred Securities. In connection with the Exchange Offer, the Issuer Company and the Guarantor shall:
(ia) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business5:00 PM, New York City time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Preferred Securities exchanged;
(ve) notify each Holder that any Security Registrable Securities not tendered will remain outstanding and continue to accrue interestoutstanding, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds any Preferred Securities acquired by it and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company and the Guarantor upon the request of such the Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such the Initial Purchaser in exchange (the “Private Exchange”) for the Preferred Securities held by such the Initial Purchaser, a like principal amount number of debt securities Preferred Securities of the Issuer Company, unconditionally guaranteed by the Guarantor as to payment of distributions (“remuneración”), on the Preferred Securities, as well as payment of the redemption price for the Preferred Securities upon any redemption thereof and the liquidation distribution of the Preferred Securities upon the winding up or liquidation of the Company, that are identical (except that such securities Preferred Securities and Guarantee shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureRegistrar and Transfer Agency Agreement or (ii) a registrar and transfer agency agreement identical in all material respects to the Registrar and Transfer Agency Agreement, and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Registrar and Transfer Agency Agreement but that the Private Exchange Securities shall be subject to such transfer restrictions. The Registrar and Transfer Agency Agreement or such registrar and transfer agency agreement shall provide that the Exchange Securities, the Private Exchange Securities and the Preferred 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 Preferred 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, and the Issuer Company shall use its reasonable best efforts to have ensure that the Private Exchange Securities bear the same CUSIP number as as, the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company and the Guarantor shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Registrable Securities duly properly tendered and not validly withdrawn pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, to the Trustee Registrar and Transfer Agent for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture Registrar and Transfer Agent promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, to each Holder of Registrable Securities so accepted for exchange in number equal in principal amount to the principal amount number of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Distributions on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which distributions were paid on the Registrable Securities surrendered in exchange therefor or, if no distributions have been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the valid tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange SecuritiesSecurities 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 F-4 or other appropriate form under the 1933 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 with respect to the Exchange Offer or the Private Exchange which, in the judgment of the Company and the Guarantor, would reasonably be expected to impair the ability of the Company or the Guarantor to proceed with the Exchange Offer or the Private Exchange. The Issuer shall Company and the Guarantor shall, to the extent such information is available to the Company or the Guarantor, inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchaser of the names and addresses of the Holders to whom the Exchange Offer is made, subject to the right of any Holder to object to the disclosure of such information with respect to such Holder, and the Initial Purchasers Purchaser shall have the right right, subject to applicable law, 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(a)Agreement, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, Company and the Issuer Guarantor shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof2.2 of this Agreement.
Appears in 1 contract
Samples: Registration Rights Agreement (Santander Finance Preferred S.A. Unipersonal)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Operating Partnership shall, for the benefit of the Holders and Holders, at the IssuerOperating Partnership’s cost cost, (iA) file with the SEC within use its reasonable best efforts to prepare and, as soon as practicable but not later than 90 days after the Closing Time Date, file with the SEC an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 150 days of the Closing TimeDate, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer Offer, and (ivD) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in cause the Exchange Offer to be consummated not later than 225 180 days after following the Closing TimeDate. The Exchange Securities shall be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Operating Partnership shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Operating Partnership within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Operating Partnership for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and business, or (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Operating Partnership shall:
(ia) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security not tendered will shall remain outstanding and continue to accrue interest, but will shall not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Operating Partnership upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Operating Partnership that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the TIA, or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that 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 Private Exchange Securities shall be of the same series as, as and the Issuer Operating Partnership shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. The Operating Partnership shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Operating Partnership shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security shall accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange SecuritiesSecurities 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 1933 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 with respect to the Exchange Offer or the Private Exchange which, in the Operating Partnership’s judgment, would reasonably be expected to impair the ability of the Operating Partnership to proceed with the Exchange Offer or the Private Exchange. The Issuer Operating Partnership shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Simon Property Group L P /De/)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and Holders, at the Issuer’s 's cost (i) file with the SEC within 90 120 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, provided that a registration statement submitted by the Issuer on a confidential basis to the SEC will be deemed to have been filed with the SEC for the purposes of this paragraph, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time, (iii) use its commercially reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its commercially reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchanged;
(v) notify each Holder that any Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “"Private Exchange Securities”"). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the Indenture or (ii) an indenture identical to the Indenture in all material respects and which, in either case, has been qualified under the TIA and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that 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 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, and the Issuer shall use its commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as as, the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its commercially reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities 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 with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To Unless the extent not prohibited by any Exchange Offer would violate applicable law or any applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost cost, use its commercially reasonable efforts to (iA) prepare and not later than 180 calendar days following the Exchange Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all for each Series of the Registrable Securities (other than Private Exchange Securities, if issued) for of a like principal amount of the corresponding Series of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities Act by within 255 calendar days of the SEC on or prior to the 180th day after the Closing TimeExchange Date, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 365 calendar days after following the Closing TimeExchange Date. Upon After the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate Affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and Company, (b) is not a broker-dealer tendering Registrable Securities who tendered Existing FMCTI Notes acquired directly from the Issuer or an affiliate of the Issuer FMCTI for its own accountaccount in exchange for New TechnipFMC Notes, acquires (c) is acquiring the Exchange Securities in the ordinary course of such Holder’s business and (d) is not engaged in and does not intend to engage in and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose distribution of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. 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 (which representation shall be contained in the letter of transmittal or other document accompanying the Exchange Offer Registration Statement) that it (i) is not an Affiliate of the Company, (ii) is not a broker-dealer who tendered Existing FMCTI Notes acquired directly from FMCTI for its own account in exchange for New TechnipFMC Notes, (iii) is acquiring the Exchange Securities in the ordinary course of such Holder’s business and (iv) is not engaged in and does not intend to engage in and has no arrangements or understandings with any Person to participate in the distribution of the Exchange Securities. In connection with the Exchange Offer, the Issuer Company shall:
(ia) mail make available to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days business days after the date notice 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”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time, on the last Business Day expiration of the Exchange Period, by sending to the institution specified in the notice letter of transmittal or other applicable notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Registrable Securities exchanged;
(v) notify each Holder that any Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vie) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. IfThe Exchange Securities shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, prior in either case, has been qualified under the Trust Indenture Act, or is exempt from such qualification. The Indenture or such indenture shall provide that the Exchange Securities and the New TechnipFMC Notes shall vote and consent together on all matters as one class and that none of the Exchange Securities or the New TechnipFMC Notes will have the right to consummation vote or consent as a separate class on any matter. As soon as reasonably practicable after the expiration of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly tendered pursuant deliver to the Private ExchangeTrustee for cancellation all Registrable Securities so accepted for exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all promptly to authenticate and deliver Exchange Securities or portions thereof to each Holder of Registrable Securities so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, in a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount equal to the principal amount of the corresponding Series of Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Security surrendered in exchange therefor or, if no interest has been paid on the Registrable Security, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer shall not be subject to any conditions, other than (i) that the Exchange Offer Offer, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder it (A) is not an affiliate Affiliate of the Issuer within Company, (B) is not a broker-dealer who tendered Existing FMCTI Notes acquired directly from FMCTI for its own account in exchange for New TechnipFMC Notes, (C) will acquire the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of such Holder’s business and that at the time of the commencement of the Exchange Offer it (D) is not engaged in and does not intend to engage in and has no arrangement arrangements or understandings with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesSecurities 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 with respect to the Exchange Offer which, in the Company’s judgment, would reasonably be expected to impair the ability of the Company to proceed with the Exchange Offer. The Issuer shall inform Company will use its commercially reasonable efforts to cause the Initial Purchasers, after consultation registrar for each Series of Registrable Securities to furnish the Dealer Managers with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Dealer Managers 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(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company and the Trust shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's expense, use its best efforts to (i) file with the SEC within 90 150 days after the Closing Time Issue Date an Exchange Ex- change Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer relating to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day within 180 days after the Closing TimeIssue Date, and (iii) use its reasonable best efforts to have keep such Registration Exchange Offer Regis- tration Statement remain effective until for not less than 30 days (or longer if required by applicable law) after the closing date notice of the Exchange Offer and (iv) commence has been mailed to the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeHolders. Upon the effectiveness effec- tiveness of the Exchange Offer Registration Statement, the Issuer Company and the Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Debentures or a like liquidation amount of Exchange Capital Securities, if issued) for together with the Exchange Securities Guarantee, as applicable (assuming that such Holder (i) is not an affiliate of the Issuer Company or the Trust within the meaning of Rule 405 under the Securities Act and is not a broker-broker- dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, account and (ii) acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate partici- xxxx in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” lawssky laws (other than requiring minimum transfers in blocks having an aggregate principal or liquidation amount, as the case may be, of $100,000). In connection with the Exchange Offer, the Issuer Company and the Trust shall:
(i) mail or cause to be mailed to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration StatementState- ment, together with an appropriate letter of transmittal and related documents;
; (ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
; (iii) utilize the services of the Trustee Depositary for the Exchange Ex- change Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution institu- tion specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interestinterest or accumulate distributions, as the case may be, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior If any Initial Purchaser determines upon advice of its outside counsel that it is not eligible to consummation of participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Securities consti- tuting any Securities acquired by it and such Securities have the status portion of an unsold allotment in the initial distributiondistri- bution, as soon as practicable upon receipt by the Issuer shall, upon Company and the Trust of a written request of from such Initial Purchaser, simultaneously with the delivery of Company and the Exchange Securities in the Exchange OfferTrust, as applicable, shall issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like liquidation amount of Capital Securities of the Trust, together with the Exchange Guarantee, or a like principal amount of debt securities the Subordinat- ed Debentures of the Issuer Company, as applicable, that are identical (except that such securities shall may bear appropriate a customary legend with respect to restrictions on transfer restrictionspursuant to the Securities Act) to the Exchange Securities (the “"Private Exchange Securities”). The Private Securi- ties") 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, (other than to require minimum transfers thereof to be in blocks of $100,000 liquidation amount or principal amount) and that the Exchange Securities, if anythe Private Exchange Securities and the Securities will vote and consent together on all matters as one class and that neither the Exchange Securities, shall be issued under the IndenturePrivate 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 asas the Exchange Securities, and the Issuer shall use its reasonable best efforts Company and the Trust will seek to have cause the CUSIP Service Bureau to issue the same CUSIP Numbers for the Private Exchange Securities bear as for the same CUSIP number as Exchange Securities issued pursuant to the applicable Exchange SecuritiesOffer. As soon as practicable after the close of the Exchange Offer and/or and, if applicable, the Private Exchange, the Company and the Trust, as the case may berequires, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the applicable Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the applicable Trustee under the Indenture Indenture, the Declaration or the Guarantee, as applicable, to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may beapplicable, equal in principal amount to the principal amount of the Subordinated Debentures or equal in liquidation amount to the liquidation amount of the Capital Securities (together with the guarantee thereof) as are surrendered by such Holder Holder. Distributions on each Exchange Capital Security and accepted for exchangeinterest on each Exchange Debenture and Private Exchange Security issued pursuant to the Exchange Offer and in the Private Exchange will accrue from the last date on which a distribution or inter- est was paid on the Capital Security or the Subordinated Deben- ture surrendered in exchange therefor 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 the staff of the SEC, the Issuer Company and the Trust shall use its reasonable their best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, in the case of any Holder of Capital Securities, representations that such Holder (i) it is not an affiliate affili- ate of the Issuer within Trust or the meaning of Rule 405 under Company, (ii) the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Capital Securities. The Issuer Company and the Trust shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasersapplicable Trustees, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer Company and the Trust shall have no further obligation to register regis- ter the Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Samples: Registration Rights Agreement (Sovereign Bancorp Inc)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (i) unless the Exchange Offer would not be permitted by applicable law or SEC policy, file with the SEC within 90 60 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities Transfer Restricted Notes (other than Private Exchange Securities, if issuedNotes (as defined below)) for a like principal amount of Exchange SecuritiesNotes, (ii) unless the Exchange Offer would not be permitted by applicable law or SEC policy, use its reasonable best efforts to cause have such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day not later than 150 days after the Closing TimeTime (the "Target Effectiveness Date"), (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) unless the Exchange Offer would not be permitted by applicable law or SEC policy, commence the Exchange Offer and use its reasonable best efforts to issue issue, on or prior to the 30th Business Day after the date on which the Exchange Securities Offer Registration Statement was declared effective by the SEC (the "Target Consummation Date"), Exchange Notes in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly Notes tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities Transfer Restricted Notes acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with Notes) and to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. 8 In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities Notes at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(v) notify each Holder that any Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Offer the Initial Purchaser holds Purchasers hold any Securities Notes acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities Notes in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities Notes held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities Notes (the “"Private Exchange Securities”Notes"). The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical to all material respects to the Indenture and that, in either case, 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. The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities Notes shall be of the same series as, as and the Issuer Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities Notes bear the same CUSIP number as the Exchange Notes. The Company shall not have any liability under this Agreement solely as a result of such Private Exchange Notes not bearing the same CUSIP number as the Exchange Notes. 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 that might materially impair the ability of the Company to proceed with the Exchange SecuritiesOffer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company deems necessary for the consummation of the Exchange Offer or Private Exchange. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Securities Transfer Restricted Notes or portions thereof properly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal that is an exhibit thereto;
(ii) accept for exchange all Securities duly Notes properly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Transfer Restricted Notes or portions thereof so accepted for exchange by the IssuerCompany, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security Note or Private Exchange SecurityNote, as the case may be, equal in principal amount to the principal amount of the Securities Transfer Restricted Notes surrendered by such Holder and accepted for exchange. 10 To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, above and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities 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 with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities Transfer Restricted Notes in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities Transfer Restricted Notes that are Private Exchange Securities, if issued, Notes and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register Registrable Securities Transfer Restricted Notes (other than Private Exchange Securities, if issuedNotes) pursuant to Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Golden Sky Systems Inc)
Exchange Offer. To The Company and the extent Subsidiary Guarantor shall (A) prepare and, as soon as practicable but not prohibited by any applicable law or applicable SEC policylater than 60 days following the Closing Date, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer Company shall:
(ia) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Standard Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of certain rights retained by the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company and the Subsidiary Guarantor shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept deliver or cause to be delivered all Registrable Securities so accepted for exchange all Securities duly tendered pursuant to the Private ExchangeTrustee for cancellation; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all promptly to authenticate and deliver Exchange Securities or portions thereof to each Holder of Registrable Securities so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, in a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer shall not be subject to any conditions, other than (i) that the Exchange Offer Offer, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the 1933 Xxx) xx the Exchange Securities Actand 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 1933 Act available, (iv) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offer and (v) that there shall not have been adopted or enacted any law, statute, rule or regulation, (vi) that there shall not have been declared by United States federal or New York state authorities a banking moratorium, (vii) that trading on the New York Stock Exchange or generally in the United States over-the-counter market shall not have been suspended by order of the SEC or any other governmental authority and (viii) such other conditions as may be reasonably acceptable to Merrxxx Xxxcx, xx each of clauses (iv) through (viii), which, in the Company's judgment, would reasonably be expected to impair the ability of the Company to proceed with the Exchange SecuritiesOffer. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To The Co-Issuers and the extent not prohibited by any applicable law or applicable SEC policy, the Issuer Guarantors shall, for the benefit of the Holders and Holders, at the Issuer’s cost Co-Issuers’ and the Guarantors’ cost, (iA) prepare and file with the SEC within 90 no later than 30 days after the Closing Time Date, an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its their commercially reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective effective, under the Securities 1933 Act not later than 90 days (150 days if the registration statement is subjected to a review by the SEC on or prior to the 180th day staff) after the Closing TimeDate, (iiiC) use its their commercially reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and Offer, (ivD) commence use their commercially reasonable efforts to cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 120 days (180 days if the registration statement is subjected to a review by the SEC staff) after the Closing Time. Upon Date, and (E) upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming provided that such Holder (a) is not an affiliate of the either Co-Issuer within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Co-Issuers for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Co-Issuers and the Guarantors shall:
(ia) mail as promptly as reasonably practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York 5:00 p.m. (Eastern time), on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. A Holder that wishes to exchange Registrable Securities in the Exchange Offer shall be required to (a) represent that (i) it is not an affiliate of either Co-Issuer within the meaning of Rule 405 under the 1933 Act, (ii) all Exchange Securities to be received by it shall be acquired in the ordinary course of its business and (iii) at the time of the consummation of the Exchange Offer it shall have no arrangement or understanding with any person to participate in the distribution (within the meaning of the 0000 Xxx) of the Exchange Securities and (b) make such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations. If such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, such broker-dealer will be required to acknowledge that it will deliver a Prospectus in connection with any resale of the Exchange Securities (and the Co-Issuers hereby agree and undertake to provide any such broker-dealer with such number of Prospectuses as such broker-dealer may reasonably request for such purpose). If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Co-Issuers upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Co-Issuers on a senior secured basis, that are identical (to the Exchange Securities, except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities restrictions (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions or “Additional Interest” provisions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that 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 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, as and the Issuer Co-Issuers shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities, if at any time the same is possible. The Co-Issuers shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. As soon as reasonably practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Co-Issuers shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange Securities 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 F-4 or other appropriate form under the 1933 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 with respect to the Exchange Offer or the Private Exchange which, in the Co-Issuers’ judgment, would reasonably be expected to impair the ability of the Co-Issuers to proceed with the Exchange Offer or the Private Exchange. If the Co-Issuers determine in their reasonable judgment that any of the foregoing conditions are not satisfied, the Co-Issuers 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 or the Private Exchange and accept all properly tendered Registrable Securities that have not been withdrawn (unless to do so could reasonably be expected to materially and adversely affect one or more tendering Holders in its capacity as such); provided that the foregoing shall not limit the right of Holders to receive, or the obligation of the Co-Issuers to pay, Additional Interest as provided by Section 2.5. The Issuer Co-Issuers shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Navios Maritime Holdings Inc.)
Exchange Offer. To The Company shall (A) prepare and, as soon as practicable but not later than 90 calendar days following the extent not prohibited by any applicable law or applicable SEC policyClosing Date, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under with respect to a proposed Exchange Offer and the Securities Act covering the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange SecuritiesNotes of each series, if issued) for a like principal amount of Exchange SecuritiesNotes of such series, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after not later than 150 calendar days following the Closing TimeDate, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in cause the Exchange Offer not later than 225 to be consummated within 270 calendar days after following the Closing TimeDate. The Exchange Notes will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) Notes for Exchange Securities Notes (assuming that such Holder (a) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities Notes acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires (c) acquired the Exchange Securities Notes in the ordinary course of such Holder’s 's business and (d) has no arrangements or understandings with any Person person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with Notes) to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and without material restrictions under state the securities laws of a substantial proportion of the several states of the United States. The Exchange Notes will be issued under the Exchange Offer as evidence of the same continuing indebtedness under the Registrable Notes. Under no circumstances will the surrender of the Registrable Notes and the issue of the Exchange Notes constitute new indebtedness or “blue sky” lawsobligate the Company to repay the principal amount of the Registrable Notes in connection with the Exchange Offer. In connection with the Exchange Offer, the Issuer Company shall:
(ia) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, Statement together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days business days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Securities Registrable Notes at any time prior to the close of business, New York time, 5:00 p.m. (Eastern Time) on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal, the principal amount of Securities Registrable Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(ve) notify each Holder that any Security Registrable 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company shall:
(i) accept for exchange all Securities or portions thereof Registrable Notes duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly tendered pursuant deliver to the Private ExchangeTrustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof promptly to authenticate and deliver the respective Exchange Notes to each Holder of Registrable Notes so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, in a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount equal to the principal amount of the Securities surrendered by Registrable Notes of such Holder and so accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer The Company shall use its reasonable best efforts to complete keep the Exchange Offer as provided aboveRegistration Statement effective and to amend and supplement the Prospectus contained therein, and shall comply with in order to permit such Prospectus to be lawfully delivered by all Participating Broker-Dealers subject to the applicable prospectus delivery requirements of the Securities Act, 1933 Act for such period of time as such Participating Broker-Dealers must comply with such requirements in order to resell the Exchange Act Notes; provided, however, that (i) such period shall be the lesser of 90 days after the consummation of the Exchange Offer and other applicable laws the date on which all Participating Broker-Dealers have sold all Exchange Notes held by them (unless such period is extended pursuant to the penultimate paragraph of Section 3 below) and (ii) the Company shall make such Prospectus, and any amendment or supplement thereto, available to any such Participating Broker-Dealer for use in connection with any resale of any Exchange Notes for a period of the lesser of 90 days after the consummation of the Exchange OfferOffer and the date on which all Participating Broker-Dealers have sold all Exchange Notes held by them (unless such period is extended pursuant to the penultimate paragraph of Section 3 below). Interest on the Exchange Notes will accrue from the most recent interest payment date to which interest has been paid on the respective Registrable Notes surrendered in exchange therefor or, if no interest has been paid on such Registrable Notes, from the date of original issuance. The Exchange Offer shall not be subject to any conditions, other than (i) that the Exchange Offer Offer, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Notes in accordance with the Exchange Offer, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities Notes exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities Notes to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange SecuritiesNotes 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 1933 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 with respect to the Exchange Offer which, in the judgment of the Company, would reasonably be expected to impair the ability of the Company to proceed with the Exchange Offer. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities Notes in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyExcept as set forth in Section 2(b) below, the Issuer Company shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost cost, (i) file with the SEC within 90 90th calendar days after the Closing Time Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer relating to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 calendar days after the Closing TimeDate, and (iii) use its reasonable best efforts to have provided such Exchange Offer Registration Statement remain has been declared effective until under the closing of Securities Act by the Exchange Offer and (iv) SEC, commence the Exchange Offer and use its reasonable best efforts keep the Exchange Offer open for not less than 30 days, or longer if required by applicable law, after the date on which such Registration Statement was declared effective by the SEC (such period referred to herein as the “Exchange Period”) and at the termination thereof, issue Exchange Securities Bonds in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly Bonds tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness Each Holder of Registrable Bonds to be exchanged in the Exchange Offer Registration Statementshall be required, the Issuer shall promptly commence as a condition to participating in the Exchange Offer, to represent that it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities Bonds in the ordinary course of such Holder’s business and that it (i) is not an Affiliate of the Company, (ii) does not hold any Bonds to be exchanged for Exchange Bonds in the Exchange Offer that were acquired other than in the ordinary course of business, (iii) is not a broker-dealer tendering Registrable Bonds acquired directly from the Company, (iv) at the time of the Exchange Offer, has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” lawsBonds. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter letter. of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee Depositary for the Exchange OfferOffer with respect to Bonds represented by a global certificate;
(iviii) permit Holders to withdraw tendered Securities Registrable Bonds at any time prior to the close of business, New York City time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice to Holders, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Registrable Bonds delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Registrable Bonds exchanged;
(viv) notify each Holder that any Registrable Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, interest but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all material respects with all applicable laws and regulations relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company shall:
(i) accept for exchange all Securities Registrable Bonds or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and letter of transmittal;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Registrable Bonds or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, Bonds equal in principal amount to the principal amount of the Securities Bonds as are surrendered by such Holder and accepted Holder. Interest on each Exchange Bond issued pursuant to the Exchange Offer will accrue from the last date on which interest was paid or duly provided for exchangeon the Bond surrendered in exchange therefor or, if no interest has been paid on such Bond, from the date of original issue of such Bond. To the extent not prohibited by any law judicial order, judgment, law, regulation or applicable interpretation of the staff of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, conditions other than the conditions referred to in Section 2(b)(i) and (ii) below and those conditions that the Exchange Offer does not violate are customary in similar exchange offers, except as may be required by applicable law or any applicable interpretation of the staff of the SEClaw. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) Bonds who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) Bonds for Exchange Securities Bonds in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, in the case of any Holder, representations that such Holder (i) it is not an affiliate Affiliate of the Issuer within the meaning of Rule 405 under the Securities ActCompany, or if (ii) it is such an affiliatenot a broker-dealer tendering Registrable Bonds acquired directly from the Company, it will comply with (iii) the registration Bonds being exchanged, and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Bonds to be received received, by it will be have been or are being acquired in the ordinary course of its business and that (iv) at the time of the commencement of the Exchange Offer Offer, it has no arrangement arrangements or understandings with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesBonds. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial PurchasersTrustee, 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 in order to facilitate the tender of Registrable Securities Bonds in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities Bonds held by Initial Purchasers and Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register the Registrable Securities (Bonds held by any other than Private Exchange Securities, if issued) Holder pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Samples: Registration Rights Agreement (Northern States Power Co)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policypolicy of the SEC, the Issuer Issuers shall, for the benefit of the Holders and Holders, at the Issuer’s cost Issuers' cost, (i) file cause to be filed with the SEC within 90 60 days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Issuers to the Holders to exchange all of the Registrable Transfer Restricted Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its their reasonable best efforts to cause have such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 120 days after the Closing TimeIssue Date, (iii) use its their reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) use their reasonable best efforts to commence the Exchange Offer and use its reasonable best efforts and, on or prior to 150 days after the Issue Date, issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Issuers shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Transfer Restricted Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Issuers within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Transfer Restricted Securities acquired directly from the Issuer or an affiliate of the Issuer Issuers for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with ) and to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Issuers shall:
(i) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”"EXCHANGE PERIOD");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York 5:00 p.m. (Eastern time, ) on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Offer the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Issuers upon the request of any such Initial PurchaserPurchaser shall, to the extent not prohibited by any applicable law or applicable policy of the SEC, use their reasonable best efforts to simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”"PRIVATE EXCHANGE") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company, guaranteed by the Guarantors, that are issued pursuant to, and entitled to the benefits of, the Indenture and are identical (in all material respects to the Exchange Securities, except that (i) such securities shall bear appropriate transfer restrictionsrestrictions and (ii) the registration rights in respect thereof (other than under this Section 2(a)) shall continue to apply (the "PRIVATE EXCHANGE SECURITIES"). The Exchange Securities and the Private Exchange Securities shall be issued under (i) the Indenture or (ii) an indenture identical to all material respects to the Indenture and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Securities (other than the “Private Exchange Securities”)) shall not be subject to the transfer restrictions set forth in the Indenture. The Private Indenture or such indenture shall provide that the Exchange Securities, if anythe Private Exchange Securities and the Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, shall be issued under the IndenturePrivate Exchange Securities or 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, and the Issuer Issuers shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as, the Exchange Securities. The Issuers shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the applicable Exchange Securities. 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 policy 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 any of the Issuers, (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 due tendering of Transfer Restricted Securities 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 Issuer Issuers shall:
(i) accept for exchange all Transfer Restricted Securities or portions thereof properly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal that is an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Transfer Restricted Securities or portions thereof so accepted for exchange by the IssuerIssuers, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Transfer Restricted Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff policy of the SEC, the Issuer Issuers shall use its reasonable their best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Transfer Restricted Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Transfer Restricted Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of any of the Issuer Issuers within the meaning of Rule 405 under the Securities Act, or if that it is such an affiliate, it will comply with not a broker-dealer tendering Transfer Restricted Securities acquired directly from the registration and prospectus delivery requirements of the Securities Act to the extent applicableCompany for its own account, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and business, 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 SecuritiesSecurities and such other representations as may be necessary under applicable SEC rules, regulations or interpretations to render the appropriate form under the Securities Act available. The Issuer Issuers shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Transfer Restricted Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the registration provisions of this Agreement (other than the preceding paragraphs of this Section 2(a)) shall continue to apply, mutatis mutandisMUTATIS MUTANDIS, solely with respect to Registrable Transfer Restricted Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, Dealers and the Issuer shall have no further obligation Transfer Restricted Securities entitled to register Registrable Securities (other than Private Exchange Securities, if issued) a Shelf Registration pursuant to the first paragraph of Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Pentacon Industrial Group Inc)
Exchange Offer. To Each of the extent not prohibited by any applicable law or applicable SEC policy, Company and the Issuer Guarantor shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (iA) use its reasonable best efforts to file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement within 120 days on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 230 days of the Closing TimeDate, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and Offer, (ivD) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in cause the Exchange Offer to be consummated not later than 225 265 days after following the Closing TimeDate and (E) for a period of 90 days following the consummation of the exchange offer, to make available a prospectus meeting the requirements of the 1933 Act to any such participating broker-dealer for use in connection with any resale of any exchange notes acquired in the exchange offer. If the Company has not consummated the Exchange Offer within 265 days of the Closing Date, then the Company will file as promptly as practicable a Shelf Registration Statement (as described in Section 2.2 hereof). The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Guarantor shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer within the meaning of "affiliate" (as such term is defined in Rule 405 under the Securities Act and 0000 Xxx) of the Company or the Guarantor (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer Company or an affiliate of the Issuer Guarantor for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s 's business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and or under state securities or “blue sky” sky laws. Exchange Securities will be issued under the Exchange Offer as evidence of the same continuing indebtedness under the Securities. Under no circumstances will the surrender of the Securities and the issue of Exchange Securities constitute new indebtedness or obligate the Company and the Guarantor to repay the principal amount of the Securities. In connection with the Exchange Offer, the Issuer Company and the Guarantor shall:
(ia) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business5:00 PM, New York City time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company and the Guarantor upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company on a senior basis, unconditionally guaranteed as to payment of principal (premium, if any), interest and additional amounts, if any, by the Guarantor, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “"Private Exchange Securities”"). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture, which, in either case, has been qualified under the TIA, or is exempt from such qualification, and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that 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 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, and the Issuer Company shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as as, the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company and the Guarantor shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Registrable Securities duly properly tendered and not validly withdrawn pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the valid tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange SecuritiesSecurities 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 F-4 or other appropriate form under the 1933 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 with respect to the Exchange Offer or the Private Exchange which, in the judgment of the Company and the Guarantor, would reasonably be expected to impair the ability of the Company or the Guarantor to proceed with the Exchange Offer or the Private Exchange. The Issuer shall Company and the Guarantor shall, to the extent such information is available to the Company or the Guarantor, inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, subject to the right of any Holder to object to the disclosure of such information with respect to such Holder, and the Initial Purchasers shall have the right right, subject to applicable law, 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(a)Agreement, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, Company and the Issuer Guarantor shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof2.2 of this Agreement.
Appears in 1 contract
Samples: Registration Rights Agreement (Coca-Cola Hellenic Bottling Co Sa)
Exchange Offer. To The Company and the extent not prohibited by any applicable law or applicable SEC policy, the Issuer Guarantors shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (iA) prepare and, as soon as practicable but not later than 60 days following the Closing Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its their reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 150 days of the Closing TimeDate, (iiiC) use its their reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence the Exchange Offer and use its their reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in cause the Exchange Offer to be consummated not later than 225 180 days after following the Closing TimeDate. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Guarantors shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires (c) acquired the Exchange Registrable Securities in the ordinary course of such Holder’s 's business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and or under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(ia) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time, 5:00 p.m. (Eastern Time) on the last Business Day business day 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 Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company and the Guarantors upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company and related guarantees by the Guarantors that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “"Private Exchange Securities”"). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the "TIA"), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions applicable to the Registrable Securities set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that 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 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, as and the Issuer Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. The Company shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company and the Guarantors shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the 1933 Xxx) xx the Exchange Securities Actand 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 1933 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 with respect to the Exchange Offer or the Private Exchange which, in the Company's judgment, would reasonably be expected to impair the ability of the Company to proceed with the Exchange SecuritiesOffer or the Private Exchange. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Miller Mechanical Contractors Inc)
Exchange Offer. To The Company and the extent not prohibited by any applicable law or applicable SEC policy, the Issuer Subsidiary Guarantors shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost and Subsidiary Guarantors’ cost, (iA) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by with the SEC on or prior to the 180th 120th day after following the Closing TimeDate, which Exchange Offer Registration Statement shall be on an appropriate form under the 1933 Act and shall relate to a proposed Exchange Offer (and only to an Exchange Offer and not to the registration of the offer or sale of any other securities) and the issuance and delivery to the Holders who so elect, in exchange for the Transfer Restricted Notes (other than Private Exchange Notes), of a like principal amount of Exchange Notes, (iiiB) use its reasonable their best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and Registration Statement declared effective by the SEC under the 1933 Act on or prior to the 180th day following the Closing Date, (ivC) commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective, (D) keep the Exchange Offer open for acceptance for not less than 20 business days after notice thereof is mailed to Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”) and consummate the Exchange Offer no later than 30 business days following the date on which the Exchange Offer Registration Statement is declared effective by the SEC, (E) use its reasonable their best efforts to issue issue, promptly after the end of the Exchange Securities Period, Exchange Notes in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) Notes that have been properly tendered prior thereto in for exchange during the Exchange Period and (F) use their best efforts to maintain the effectiveness of the Exchange Offer not later than 225 days after Registration Statement during the Closing TimeExchange Period and thereafter until such time as the Company has issued Exchange Notes in exchange for all Transfer Restricted Notes that have been properly tendered for exchange during the Exchange Period. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Subsidiary Guarantors shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes for Exchange Securities Notes (assuming that such Holder makes certain representations and warranties to the Company, including representations that (a) it is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (c) if such Holder is not a broker-dealer tendering Registrable Securities acquired directly from dealer, that it is not engaged in, and does not intend to engage in, the Issuer or an affiliate distribution of the Issuer Exchange Notes, (d) if such Holder is a broker-dealer that will receive Exchange Notes for its own accountaccount in exchange for Transfer Restricted Notes acquired as a result of market-making or other trading activities, acquires the Exchange Securities that such broker-dealer will deliver a prospectus in the ordinary course connection with any resale of such Holder’s business Exchange Notes, and (e) it has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning distribution of the Securities Act) Transfer Restricted Notes or the Exchange Securities), with Notes) to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer shallCompany and the Subsidiary Guarantors shall additionally:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiia) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivb) permit Holders to withdraw tendered Securities Transfer Restricted Notes at any time prior to the close of business, New York time5:00 p.m. (Eastern Standard Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Transfer Restricted Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Securities Notes exchanged;
(vc) notify each Holder that any Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vid) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities Notes acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company and the Subsidiary Guarantors upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities Notes in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities Notes held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities Notes (the “Private Exchange SecuritiesNotes”) and guaranteed by the Subsidiary Guarantors. 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, has been qualified under the Trust Indenture Act of 1939, as amended (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 but that the Private Exchange Notes shall be subject to such transfer restrictions. The Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and 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. The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities Notes shall be of the same series as, as the Exchange Notes and the Issuer Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities Notes bear the same CUSIP number numbers as the applicable Exchange SecuritiesNotes. The Company and the Subsidiary Guarantors shall not have any liability under this Agreement solely as a result of such Private Exchange Notes not bearing the same CUSIP numbers as the Exchange Notes. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company and the Subsidiary Guarantors shall:
(i) accept for exchange all Securities or portions thereof Transfer Restricted Notes duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly Notes properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Securities or portions thereof Transfer Restricted Notes so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Notes or Private Exchange SecurityNotes, as the case may be, equal to each Holder of Transfer Restricted Notes so accepted for exchange in a principal amount equal to the principal amount of the Securities surrendered by Transfer Restricted Notes of such Holder and so accepted for exchange. To Interest on each Exchange Note and Private Exchange Note, including Additional Interest, will accrue (a) from the extent not prohibited by any law later of (i) the last date on which interest was paid on the Transfer Restricted Notes surrendered in exchange therefor or applicable interpretation (ii) if the Transfer Restricted Notes 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 the staff of the SECsuch exchange and as to which interest will be paid, the Issuer shall use its reasonable best efforts to complete date of such interest payment date or (b) if no interest has been paid on the Exchange Offer as provided aboveTransfer Restricted Notes, and shall comply with the applicable requirements of the Securities Actfrom [___], the Exchange Act and other applicable laws in connection with the Exchange Offer2006. 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities 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 with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right right, but not the obligation, to contact such Holders and otherwise facilitate the tender of Registrable Securities Transfer Restricted Notes in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Issuers shall, for the benefit of the Holders and Holders, at the Issuer’s cost Issuers' cost, use their best efforts to (i) file cause to be filed with the SEC within 90 60 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Issuers to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause have such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 120 days after the Closing Time, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 150 days after the Closing Time. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Issuers shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer is to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Issuers within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Issuers for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with ) and to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Issuers shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Offer the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Issuers upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company, guaranteed by the Guarantor on a senior subordinated basis, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “"Private Exchange Securities”). The Private ") and which are issued pursuant to the Indenture (which will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that the Exchange Securities, if anythe Private Exchange Securities and the Securities will vote and consent together on all matters as one class and that neither the Exchange Securities, shall be issued under the IndenturePrivate 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, as and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Issuers shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the IssuerIssuers, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchangeHolder. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Issuers shall use its reasonable their best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer Issuers within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities 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 with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer Issuers shall inform the Initial Purchasers, after consultation with the Trustee and 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer Issuers shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyExcept as set forth in Section 2(b) hereof, the Issuer Company and the Trust shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (i) file cause to be filed with the SEC within 90 150 days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its their reasonable best good faith efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 210 days after the Closing TimeIssue Date, and (iii) use its their reasonable best good faith efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (except as set forth in Section 3(r) below or longer if required by applicable law) after the closing date notice of the Exchange offer is post marked 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(b) in lieu of conducting an Exchange Offer in accordance with the foregoing sentence, the Company may, if permitted in accordance with then applicable laws or regulations and the then current interpretations of the staff of the SEC, 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 conducts such 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 upon the consummation of the Exchange Offer with respect of any Holder which could have received securities that would be freely tradable without restriction under the Securities Act and (iv) commence the Exchange Offer and use applicable blue sky or state securities laws through its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto participation in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Debentures or a like liquidation amount of Exchange Capital Securities, if issued) for together with the Exchange Securities Guarantee, as applicable (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” or in a public distribution (within the meaning of the Securities Act) for the purpose of distributing the Exchange Securities), with to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company and the Trust shall:
(i) : mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
documents (ii) together, the "Notice"); keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (iiii) the Company and the Trust having exchanged the Exchange Securities for all outstanding Capital Securities pursuant to the Exchange Offer, and (ii) the Company and the Trust having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Securities that have been properly tendered and not withdrawn before the expiration of the Exchange Period, which shall be a date that is at least 30 days following the commencement of the Exchange Offer; utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) Offer with respect to Capital Securities represented by a global certificate; permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to Period in accordance with the institution instructions 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 such Holder’s election to have such Securities exchanged;
(v) Notice; notify each Holder by means of the Notice that any Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interestinterest or accumulate distributions, as the case may be, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) and otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation If any of the Initial Purchasers determine upon advice of outside counsel that it is not eligible to participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Securities constituting any Securities acquired by it and such Securities have the status portion of an unsold allotment in the initial distributionplacement, as soon as practicable upon receipt by the Issuer shall, upon Company and the Trust of a written request of from such Initial Purchaser, simultaneously with the delivery of Company and the Exchange Securities in the Exchange OfferTrust, as applicable, shall issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial PurchaserPurchaser a like liquidation amount of Exchange Capital Securities of the Trust or, in the event the Trust is liquidated and Debentures are distributed, a like principal amount of debt securities the Exchange Debentures of the Issuer Company, entitled to the benefits of the Exchange Capital Securities Guarantee (if applicable), in each case that are identical (except that such securities shall may bear appropriate a customary legend with respect to restrictions on transfer restrictionspursuant to the Securities Act) to the Exchange Securities (the “"Private Exchange Securities”). The Private ") and which are issued pursuant to the Indenture or the Declaration (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, if anythe Private Exchange Securities and the Securities will vote and consent together on all matters as one class and that none of the Exchange Securities, shall be issued under the IndenturePrivate Exchange Securities or 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 asas the Exchange Securities, and the Issuer shall use its reasonable best efforts Company and the Trust will seek to have cause the CUSIP Service Bureau to issue the same CUSIP numbers for the Private Exchange Securities bear as for the same CUSIP number as Exchange Securities issued pursuant to the applicable Exchange SecuritiesOffer. As soon as practicable after the close of the Exchange Offer and/or Offer, and, if applicable, the Private Exchange, the Company and the Trust, as the case may berequires, the Issuer shall:
(i) : accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to Offer or the Private Exchange; and
(iii) deliver, or cause to be delivered, to the applicable Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, Company; and issue, and cause the applicable Trustee under the Indenture Indenture, the Declaration or the Guarantee, as applicable, to promptly authenticate and deliver to each Holder, a new Exchange Security or Securities and Private Exchange SecuritySecurities, as the case may beapplicable, equal in principal amount to the principal amount of the Debentures or equal in liquidation amount to the liquidation amount to the Capital Securities surrendered (entitled to the benefits of the guarantee thereof) as are tendered by such Holder and accepted for exchangewill execute, and cause the applicable Trustee to execute, the Exchange Capital Securities Guarantee. To Distributions on each Exchange Capital Security and distributions or interest on each Exchange Debenture and Private Exchange Security issued pursuant to the Exchange Offer and in the Private Exchange will accumulate or accrue from the last date on which a distribution or interest was paid on the Capital Security or the Debenture surrendered in exchange therefor or, if no distribution or interest has been paid on such Capital Security or Debenture, from the Issue Date. Subject to the provisions of this Agreement, to the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company and the Trust shall use its their reasonable best good faith efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than as specified in this agreement and those conditions that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECare customary in similar exchange offers. Each Holder of Registrable Securities (other than Private Exchange Securities, if issuedParticipating Broker-Dealers) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder (i) it is not an affiliate of the Issuer within Trust or the meaning of Rule 405 under Company, (ii) the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Capital Securities. The Issuer shall inform the Initial Purchasers, after consultation Participating Broker-Dealers and others who cannot make such representations will not acquire freely-tradable Exchange Capital Securities and must comply with the Trustee registration and the Initial Purchasers, prospectus delivery requirements 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 Registrable Securities in the Exchange OfferAct. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer Company and the Trust shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) held by any Holder pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Samples: Registration Rights Agreement (First Midwest Bancorp Inc)
Exchange Offer. To Subject to Section 2(b) below, to the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company and the Trust shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, use their best efforts to (i) file cause to be filed with the SEC within 90 150 days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeIssue Date, and (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (or longer if required by applicable law) after the closing date notice of the Exchange Offer and (iv) commence is mailed to the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeHolders. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Debentures or a like liquidation amount of Exchange Capital Securities, if issued) for together with the Exchange Securities Guarantee, as applicable (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company and the Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Series A Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount or liquidation amount, as the case may be, of Series A Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s its election to have such Series A Securities exchanged;
(v) notify each Holder Holder, in such letter of transmittal or otherwise, that any Series A Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interestinterest or accumulate distributions, as the case may be, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior If the Initial Purchaser determines upon advice of its outside counsel that it is not eligible to consummation of participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Series A Securities constituting any Securities acquired by it and such Securities have the status portion of an unsold allotment in the initial distribution, as soon as practicable upon receipt by the Issuer shall, upon Company and the Trust of a written request of such from the Initial Purchaser, simultaneously with and subject to any restrictions or requirements imposed on such exchange by law, the delivery of Company and the Exchange Securities in the Exchange OfferTrust, as applicable, shall issue and deliver to such the Initial Purchaser in exchange (the “"Private Exchange”") for the Series A Securities held by such the Initial Purchaser, a like liquidation amount of Capital Securities of the Trust, together with the Exchange Guarantee ("Private Exchange Capital Securities"), or a like principal amount of debt securities the Series A Subordinated Debentures of the Issuer Company ("Private Exchange Debentures"), as applicable, that are identical (except that such securities shall may bear appropriate a customary legend with respect to restrictions on transfer restrictionspursuant to the Securities Act) to the Exchange Securities (the “Private Exchange Capital Securities and the Private Exchange Debentures are hereinafter referred to collectively as the "Private Exchange Securities”). The Private ") and which are issued pursuant to the Indenture, the Declaration or the Exchange 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, if anythe Private Exchange Securities and the Series A Securities will vote and consent together on all matters as one class and that neither the Exchange Securities, shall be issued under the IndenturePrivate Exchange Securities nor the Series A 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, as the Exchange Securities and the Issuer shall use its reasonable best efforts Company and the Trust will seek to have cause the CUSIP Service Bureau to issue the same CUSIP Numbers for the Private Exchange Securities bear as for the same CUSIP number as Exchange Securities issued pursuant to the applicable Exchange SecuritiesOffer. In the event the Initial Purchaser shall make a request for a Private Exchange, it shall use its best efforts to assist the Company in completing such Private Exchange. As soon as practicable after the close of the Exchange Offer and/or and, if applicable, the Private Exchange, the Company and the Trust, as the case may be, the Issuer shall:
(i) accept for exchange all Series A Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the applicable Trustee for cancellation all Series A Securities or portions thereof so accepted for exchange by the Issuer, Company and the Trust; and
(iii) issue, and cause the applicable Trustee under the Indenture Indenture, the Declaration or the Exchange Guarantee, as applicable, to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may beapplicable, equal in principal amount to the principal amount of the Series A Subordinated Debentures or equal in liquidation amount to the liquidation amount to the Series A Capital Securities (together with the guarantee thereof) as are surrendered by such Holder Holder. Distributions on each Exchange Capital Security and accepted for exchangePrivate Exchange Security and interest on each Exchange Debenture and Private Exchange Debenture issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last date on which a Distribution or interest was paid on the Series A Capital Security or the Series A Subordinated Debenture surrendered in exchange therefore or, if no Distribution or interest has been paid on such Series A Capital Security or Series A Subordinated Debenture, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company and the Trust shall use its reasonable their best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, in the case of any Holder of Series A Capital Securities and/or Series A Subordinated Debentures, representations that such Holder (i) it is not an affiliate of the Issuer within Trust or the meaning of Rule 405 under Company, (ii) the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Capital Securities. The Issuer Company and the Trust shall inform the Initial PurchasersPurchaser, after consultation with the Trustee and the Initial PurchasersTrustee, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers 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(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer Company and the Trust shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Samples: Registration Rights Agreement (Equitable of Iowa Companies)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, use its best efforts to (i) file cause to be filed with the SEC within 90 60 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 120 days after the Closing Time, (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until the closing consummation of the Exchange Offer and (iv) commence cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 150 days after the Closing Time. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii1) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii1) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior If any Purchaser determines upon advice of its outside counsel that it is not eligible to consummation of participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Securities constituting any Securities acquired by it and such Securities have the status portion of an unsold allotment in the initial distribution, as soon as practicable upon receipt by the Issuer shall, upon the Company of a written request from such Purchaser and an opinion of outside counsel for such Initial Purchaser, simultaneously reasonably satisfactory in form and substance to outside counsel of the Company, to the effect that such exchange does not require compliance with the delivery of registration requirements under the Exchange Securities in Act, the Exchange Offer, Company shall issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “"Private Exchange Securities”). The Private ") and which are issued pursuant to the Indenture (which will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that the Exchange Securities, if anythe Private Exchange Securities and the Securities will vote and consent together on all matters as one class and that neither the Exchange Securities, shall be issued under the IndenturePrivate 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, as the Exchange Securities and the Issuer shall use its reasonable best efforts Company will seek to have cause the CUSIP Service Bureau to issue the same CUSIP Number for the Private Exchange Securities bear as for the same CUSIP number as Exchange Securities issued pursuant to the applicable Exchange SecuritiesOffer. As soon as practicable after the close of the Exchange Offer and/or or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder Holder. Interest on each Exchange Security and accepted for exchangePrivate Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Securities surrendered in exchange therefor or, if no interest has been paid on the Securities, from the date of original issue of the Securities. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer and each Purchaser who holds and wishes to exchange Registrable Securities for Exchange Securities in the Private Exchange will be required to make certain customary representations in connection therewith, including including, in the case of any Holder, representations that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities ActAct or, or if it is such an affiliate, it that such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities 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 with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Samples: Registration Rights Agreement (Freedom Chemical Co)
Exchange Offer. To Except as set forth in Section 2(b) below, Peoples and the extent not prohibited by any applicable law or applicable SEC policy, the Issuer Trust shall, for the benefit of the Holders and at the Issuer’s cost Holders, (i) file cause to be filed with the SEC within 90 150 days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer relating to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 210 days after the Closing TimeIssue Date, and (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (or longer if required by applicable law) after the closing date notice of the Exchange Offer and (iv) commence is mailed to the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeHolders. Upon the effectiveness of the Exchange Offer Registration Statement, Peoples and the Issuer Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Debentures or a like liquidation amount of Exchange Capital Securities, if issued) for together with the Exchange Capital Securities Guarantee, as applicable (assuming that such Holder (i) is not an affiliate Affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and Trust or Peoples, (ii) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Peoples for its own account, (iii) acquires the Exchange Securities in the ordinary course of such Holder’s 's business and (iv) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” lawssky laws (other than requiring minimum transfers in blocks having an aggregate principal or liquidation amount, as the case may be, of $100,000). In connection with the Exchange Offer, Peoples and the Issuer Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interestinterest or accumulate distributions, as the case may be, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior If the Initial Purchaser determines upon advice of its counsel that it is not eligible to consummation of participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Securities constituting any Securities acquired by it and such Securities have the status portion of an unsold allotment in the initial distribution, as soon as practicable upon receipt by Peoples and the Issuer shall, upon the Trust of a written request of from such Initial Purchaser, simultaneously with Peoples and the delivery of the Exchange Securities in the Exchange OfferTrust, as applicable, shall issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like liquidation amount of Capital Securities of the Trust or, in the event the Trust is liquidated and Subordinated Debentures are distributed, a like principal amount of debt securities the Subordinated Debentures of Peoples, together with the Issuer Exchange Capital Securities Guarantee, in each case that are identical (except that such securities shall may bear appropriate a customary legend with respect to restrictions on transfer restrictionspursuant 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) (other than requiring minimum transfers in blocks having an aggregate principal or liquidation amount, as the case may be, of $100,000). The Private , and that the Exchange Securities, if anythe Private Exchange Securities and the Securities will vote and consent together on all matters as one class and that neither the Exchange Securities, shall be issued under the IndenturePrivate 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, as the Exchange Securities and Peoples and the Issuer shall use its reasonable best efforts Trust will seek to have cause the CUSIP Service Bureau to issue the same CUSIP Numbers for the Private Exchange Securities bear as for the same CUSIP number as Exchange Securities issued pursuant to the applicable Exchange SecuritiesOffer. As soon as practicable after the close of the Exchange Offer and/or and, if applicable, the Private Exchange, Peoples and the Trust, as the case may berequires, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the applicable Trustee for cancellation all Securities or portions thereof so accepted for exchange by Peoples or the Issuer, and Trust; and
(iii) issue, and cause the applicable Trustee under the Indenture Indenture, the Declaration or the Guarantee, as applicable, to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may beapplicable, equal in principal amount to the principal amount of the Subordinated Debentures or equal in liquidation amount to the liquidation amount of the Capital Securities (together with the guarantee thereof) as are surrendered by such Holder Holder. Distributions on each Exchange Capital Security and accepted for exchangePrivate Exchange Security and interest on each Exchange Debenture issued pursuant to the Exchange Offer and in the 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 therefor 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 the staff of the SEC, Peoples and the Issuer Trust shall use its their reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, in the case of any Holder of Capital Securities, representations that such Holder (i) it is not an affiliate Affiliate of the Issuer within Trust or Peoples, (ii) the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Capital Securities. The Issuer Peoples and the Trust shall inform the Initial PurchasersPurchaser, after consultation with the Trustee and the Initial Purchasersapplicable Trustees, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers 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(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and Peoples and the Issuer Trust shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) Securities held by any Holder pursuant to Section 2(b) hereofof this Agreement).
Appears in 1 contract
Samples: Registration Rights Agreement (Peoples Bancorp Inc)
Exchange Offer. To The Company shall (A) prepare and, as soon as practicable but not later than 45 calendar days following the extent not prohibited by any applicable law or applicable SEC policyClosing Date, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 120 calendar days of the Closing TimeDate, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence use its best efforts to cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 150 calendar days after following the Closing TimeDate. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s 's business and (d) has no arrangements or understandings with any Person person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and without material restrictions under state the securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder laws of a copy substantial proportion of the Prospectus forming part several states of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day 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 such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities 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 with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofUnited States.
Appears in 1 contract
Samples: Registration Rights Agreement (Smithkline Diagnostics Inc)
Exchange Offer. (i) To the extent not prohibited by any applicable law or applicable SEC policypolicy of the SEC, the Issuer Issuers shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (iA) prepare and, as soon as practicable but not later than 120 days after the Issue Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Issuers to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (iiB) use its reasonable their best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeIssue Date, (iiiC) use its reasonable their best efforts to have keep such Registration Statement remain effective until the closing of the Exchange Offer and (ivD) use their best efforts to commence the Exchange Offer and use its reasonable best efforts and, on or prior to 240 days after the Issue Date, issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Issuers shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (A) is not an affiliate of the Issuer Issuers within the meaning of Rule 405 under the Securities Act or, if such Holder is an affiliate, that it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (B) is not a broker-dealer tendering Registrable Transfer Restricted Securities acquired directly from the Issuer or an affiliate of the Issuer Issuers for its own account, acquires (C) acquired the Exchange Securities in the ordinary course of such Holder’s 's business and (D) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with ) and to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. .
(ii) In connection with the Exchange Offer, the Issuer Issuers shall:
(iA) after the effectiveness of the Exchange Offer Registration Statement, mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iiB) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”"EXCHANGE PERIOD");
(iiiC) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivD) permit Holders to withdraw tendered Securities at any time prior to the close of business, 5:00 p.m. (New York time, ) on the last Business Day of the Exchange Period, Period by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchanged;
(vE) notify each Holder that any Security Securities not tendered or withdrawn will remain outstanding and continue to accrue interest, interest but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viF) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. .
(iii) If, prior to consummation of the Exchange Offer, an Offer the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Issuers upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”"PRIVATE EXCHANGE") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are Company, guaranteed by the Guarantors, issued pursuant to, and entitled to the benefits of, the Indenture and identical (to the Exchange Securities, except that such securities shall bear appropriate transfer restrictionsrestrictions (the "PRIVATE EXCHANGE SECURITIES").
(iv) to the The Exchange Securities (and the “Private Exchange Securities”). The Private Exchange Securities, if any, Securities shall be issued under (A) the Indenture or (B) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that 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 Private Exchange Securities shall be of the same series as, and the Issuer Company shall use its reasonable best efforts seek to have cause the CUSIP Service Bureau to issue the same CUSIP numbers for the Private Exchange Securities bear as for the Exchange Securities issued pursuant to the Exchange Offer; provided that the Company shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not having the same CUSIP number as the applicable Exchange Securities. .
(v) The Exchange Offer and the Private Exchange shall not be subject to any conditions other than (A) in the reasonable opinion of counsel to the Company, the Exchange Offer, or Private Exchange, as the case may be, does not violate applicable law or any applicable policy of the SEC, (B) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which, in the judgment of the Issuers, would reasonably be expected to impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange nor shall any material adverse development have occurred in any such action or proceeding with respect to the Issuers, (C) all governmental approvals which the Issuers deem reasonably necessary for the consummation of the Exchange Offer or Private Exchange shall have been obtained and (D) the due tendering of Transfer Restricted Securities in accordance with the terms of the Exchange Offer.
(vi) As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Issuers shall:
(iA) accept for exchange all Securities or portions thereof properly tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to Offer or the Private Exchange; and
(iiiB) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the IssuerIssuers, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. .
(vii) To the extent not prohibited by any law or applicable interpretation of the staff policy of the SEC, the Issuer Issuers shall use its reasonable their best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that (A) such Holder is not an affiliate of any of the Issuer Issuers within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, that it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that (B) it is not a broker-dealer tendering Transfer Restricted Securities acquired directly from the Issuers for its own account, (C) any Exchange Securities 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 (D) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. Each Participating Broker-Dealer will be required to acknowledge that it will deliver the Prospectus included in the Exchange Offer Registration Statement in connection with the resale of Exchange Securities to the extent it is subject to the prospectus delivery requirements of the SEC. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. .
(viii) Upon consummation of the Exchange Offer in accordance with this Section 2(a), (A) the provisions of this Agreement shall continue to apply, mutatis mutandismodified as necessary, solely with respect to Registrable Transfer Restricted Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, Dealers and Transfer Restricted Securities entitled to a Shelf Registration pursuant to the Issuer first paragraph of Section 2(b) hereof and (B) the Company shall have no further obligation to register Registrable any Transfer Restricted Securities (other than Private Exchange Securities, if issued) the registration of Transfer Restricted Securities pursuant to Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Norske Skog Canada LTD)
Exchange Offer. To The Company and the extent not prohibited by any applicable law or applicable SEC policy, the Issuer Guarantors shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (iA) prepare and, as soon as practicable but not later than 45 days following the Closing Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Unsold Securities and Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 105 days of the Closing TimeDate, (iiiC) use its reasonable their best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence use their best efforts to cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 135 days after following the Closing TimeDate. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Guarantors shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Unsold Securities and Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Company within the meaning of Rule 405 promulgated under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s 's business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company and the Guarantors shall:
(ia) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distributiondistribution ("Unsold Securities"), the Issuer shall, Company and the Guarantors upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company, guaranteed by the Guarantors on the same basis as the Unsold Securities, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “"Private Exchange Securities”"). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the TIA, or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that 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 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, and the Issuer Company and the Guarantors shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as, the Exchange Securities. Neither the Company nor any of the Guarantors shall have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company and the Guarantors shall:
(i) accept for exchange all Registrable Securities or portions thereof (other than Unsold Securities and Private Exchange Securities) duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange SecuritiesSecurities 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 1933 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 with respect to the Exchange Offer or the Private Exchange which, in the Company's and the Guarantors' judgment, would reasonably be expected to impair the ability of the Company and the Guarantors to proceed with the Exchange Offer or the Private Exchange. The Issuer Company and the Guarantors shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Mallard & Mallard of La Inc)
Exchange Offer. To Unless the extent not prohibited by any Exchange Offer would violate applicable law or any applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost cost, use its commercially reasonable efforts to (iA) prepare and not later than 90 calendar days following the Settlement Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities, if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities Act by within 225 calendar days of the SEC on or prior to the 180th day after the Closing TimeSettlement Date, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 270 calendar days after following the Closing TimeSettlement Date. Upon After the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate “affiliate” of the Issuer Company within the meaning of Rule 405 under the Securities Act and Act, (b) is not a broker-dealer tendering Registrable Securities who tendered Old Notes acquired directly from the Issuer or an affiliate of the Issuer Company for its own accountaccount in exchange for New Notes, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) is not engaged in and does not intend to engage in and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose distribution of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. 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 that it (i) is not an affiliate of the Company within the meaning of Rule 405 under the Securities Act, (ii) is not a broker-dealer who tendered Old Notes acquired directly from the Company for its own account in exchange for New Notes, (iii) acquired the Exchange Securities in the ordinary course of such Holder’s business and (iv) is not engaged in and does not intend to engage in and has no arrangements or understandings with any Person to participate in the distribution of the Exchange Securities. In connection with the Exchange Offer, the Issuer Company shall:
(ia) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days business days after the date notice 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”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time, on the last Business Day expiration of the Exchange Period, by sending to the institution specified in the notice letter of transmittal or other applicable notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Registrable Securities exchanged;
(v) notify each Holder that any Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vie) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. IfThe Exchange Securities shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, prior in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), or is exempt from such qualification. The Indenture or such indenture shall provide that the Exchange Securities and the New Notes shall vote and consent together on all matters as one class and that none of the Exchange Securities or the New Notes will have the right to consummation vote or consent as a separate class on any matter. As soon as reasonably practicable after the expiration of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly tendered pursuant deliver to the Private ExchangeTrustee for cancellation all Registrable Securities so accepted for exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all promptly to authenticate and deliver Exchange Securities or portions thereof to each Holder of Registrable Securities so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, in a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Security surrendered in exchange therefor or, if no interest has been paid on the Registrable Security, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer shall not be subject to any conditions, other than (i) that the Exchange Offer Offer, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder it (A) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act, or if it (B) is such an affiliatenot a broker-dealer who tendered Old Notes acquired directly from the Company for its own account in exchange for New Notes, it will comply with (C) acquired the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of such Holder’s business and that at the time of the commencement of the Exchange Offer it (D) is not engaged in and does not intend to engage in and has no arrangement arrangements or understandings with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesSecurities 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 with respect to the Exchange Offer which, in the Company’s judgment, would reasonably be expected to impair the ability of the Company to proceed with the Exchange Offer. The Issuer shall inform Company will use its commercially reasonable efforts to cause the Initial Purchasers, after consultation registrar for the Registrable Securities to furnish the Dealer Managers with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Dealer Managers 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(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Conagra Foods Inc /De/)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Company shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost cost, (iA) prepare and, as soon as practicable but not later than 90 days following the Closing Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 180 days of the Closing TimeDate, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence use its best efforts to cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 210 days after following the Closing TimeDate. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, (c) acquires the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(ia) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, 5:00 p.m. (New York timeCity Time), on the last Business Day of the on which Exchange PeriodOffer shall remain open, 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 Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security not tendered will remain outstanding and continue to accrue interestinterest at the initial rate borne by the Securities, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company on a senior basis, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that 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 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, as and the Issuer Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. The Company shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and Company; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder (A) it is not an affiliate of the Issuer within the meaning of (as defined in Rule 405 under the Securities Act1000 Xxx) of the Company or, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities 1933 Act to the extent applicable, that (B) any Exchange Securities to be received by it will shall be acquired in the ordinary course of business and that business, (C) at the time of the commencement consummation of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act1000 Xxx) of the Exchange SecuritiesSecurities 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 another appropriate form under the 1933 Act available, and (D) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offer or the Private Exchange which, in the Company’s judgment, would reasonably be expected to impair the ability of the Company to proceed with the Exchange Offer or the Private Exchange. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (iA) prepare and, as soon as practicable but not later than 120 days following the Closing Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 180 days of the Closing TimeDate, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in cause the Exchange Offer to be consummated not later than 225 40 days after the Closing Timeeffective date of the Exchange Offer Registration Statement. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s 's business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(ia) mail or cause to be mailed as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days business days (or longer, if required by applicable law or otherwise extended by the Company, at its option) after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like principal amount of senior debt securities of the Issuer Company, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “"Private Exchange Securities”"). The Exchange Securities and the Private Exchange Securities, if any, 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, has been qualified under the Trust Indenture Act of 1939, as amended (the "TIA"), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that the 2007 Notes (including any Additional Senior Notes of the same series) and the Exchange Securities and Private Exchange Securities (if any) corresponding thereto shall vote and consent together on all matters as a single class and shall constitute a single series of debt securities issued under the Indenture, and that none of the Exchange Securities, Private Exchange Securities or Securities within the series of such 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, as and the Issuer Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange SecuritiesSecurities to which they relate. The Company shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities to which they relate. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of business and its business, that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange Securities), that it is not an affiliate (as defined in Rule 405 under the 0000 Xxx) of the Company, and that it is not acting on behalf of any Person that could not truthfully make the representations in this clause (iii) 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 1933 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 with respect to the Exchange Offer or the Private Exchange which, in the Company's judgment, would reasonably be expected to impair the ability of the Company to proceed with the Exchange Offer or the Private Exchange. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Panhandle Eastern Pipe Line Co LLC)
Exchange Offer. To (a) The Issuer and the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost Company shall (i) prepare and, as soon as practicable but not later than 45 days following the Closing Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under with respect to a proposed Exchange Offer and the Securities Act covering the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, which will have terms identical in all material respects to the Notes (except that the Exchange Notes will not contain terms with respect to transfer restrictions or interest rate increases as described herein), (ii) use its reasonable their best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 135 days following the Closing TimeDate, (iii) use its reasonable their best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer Offer, and (iv) commence use their best efforts to cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 165 days after following the Closing TimeDate. Upon The Exchange Securities will be issued under the Indenture. Promptly upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (A) is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and 1933 Act, (B) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires (C) acquired the Exchange Securities in the ordinary course of such Holder’s business 's business, and (D) has no arrangements or understandings with any Person person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and without material restrictions under state the securities or “blue sky” laws. laws of a substantial proportion of the several states of the United States.
(b) In connection with the Exchange Offer, the Issuer and the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days (as defined in Section 14(d) under the Exchange Act) after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depository for the Exchange Offer;
(iv) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Registrable Security 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 Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange .
(the “Private Exchange”c) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer and the Company shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly tendered pursuant deliver to the Private ExchangeTrustee for cancellation all Registrable Securities so accepted for exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all promptly to authenticate and deliver Exchange Securities or portions thereof to each Holder of Registrable Securities so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, in a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To .
(d) Interest on each Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance thereof. The Exchange Offer shall not be subject to any conditions, other than (i) that the Exchange Offer Offer, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange SecuritiesSecurities 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 1933 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 with respect to the Exchange Offer which, in the Issuer's judgment, would reasonably be expected to impair the ability of the Issuer to proceed with the Exchange Offer. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchaser of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers 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(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To the extent Unless not prohibited by permitted because of any applicable law changes in law, SEC rules or regulations or applicable SEC policyinterpretations thereof by the staff of the SEC, the Issuer Company and the Guarantor shall, for the benefit of the Holders Holders, (A) prepare and at not later than 120 days following the Issuer’s cost (i) Closing Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its their reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 180 days of the Closing TimeDate, (iiiC) use its their reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence use their reasonable efforts to cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 210 days after following the Closing TimeDate. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Guarantor shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that to transfer such Exchange Securities from and after their receipt without any limitations or restrictions under the 1933 Act and under state securities or blue sky laws. Each Holder participating in the Exchange Offer shall be required, as a condition to such participation, to represent in writing to the Company that, at the time of the consummation of the Exchange Offer, such Holder (a) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer Company and the Guarantor shall:
(ia) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an any Initial Purchaser holds any Securities acquired by it and such Securities have having, or which are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, the Issuer shall, Company and the Guarantor upon the request of such any Initial PurchaserPurchasers shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser Purchasers in exchange (the a “Private Exchange”) for the Securities held by such Initial PurchaserPurchasers, a like principal amount of debt securities of the Issuer Company guaranteed by the Guarantor with respect thereto, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under Securities and the Indenture. The Private Exchange 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, has been qualified under the Trust Indenture Act of 1939, as amended (the same series as“TIA”), or is exempt from such qualification and shall provide that the Issuer Exchange Securities shall use its reasonable best efforts not be subject to have the transfer restrictions set forth in the Indenture, but that the Private Exchange Securities bear shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that the Exchange Securities, the Private Exchange Securities and the Securities having the same CUSIP number interest rate and maturity shall vote and consent together on all matters as one class and that none of the applicable Exchange Securities, the Private Exchange Securities or the Securities having the same interest rate and maturity will have the right to vote or consent as a separate class on any matter. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company and the Guarantor shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to the Depositary for the benefit of each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation of last date on which interest was paid on the staff of Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the SECRegistrable Securities, from the Issuer shall use its reasonable best efforts to complete Closing Date. Neither the Exchange Offer as provided above, and nor the Private Exchange shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will shall have made the representations set forth above in this Section 2.1 and such other representations as may be required reasonably necessary under applicable SEC rules, regulations or interpretations to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate render available the use of the Issuer within the meaning of Rule 405 Form S-4 or other appropriate form under the Securities Act, 1933 Act and (iv) that no action or if it is such an affiliate, it will comply proceeding shall have been instituted or threatened in any court or by or before any governmental agency with the registration and prospectus delivery requirements of the Securities Act respect to the extent applicable, that any Exchange Securities 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 with any Person to participate or the Private Exchange which, in the distribution (within Company’s and the meaning Guarantor’s judgment, would reasonably be expected to impair the ability of the Securities Act) of Company and the Guarantor to proceed with the Exchange SecuritiesOffer or the Private Exchange, as the case may be. The Issuer Company and the Guarantor shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Tyco International LTD /Ber/)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (i) prepare and, as soon as practicable but not later than 90 days following the Closing Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 150 days of the Closing TimeDate, (iii) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence use its best efforts to cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 180 days after following the Closing TimeDate. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (i) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and 1933 Act, (ii) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires (iii) acquired the Exchange Securities in the ordinary course of such Holder’s 's business and (iv) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(ia) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to upon consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company that are identical in all material respects (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “"Private Exchange Securities”"). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the "TIA"), or is exempt from such qualification, and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that 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 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, and the Issuer Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as, the Exchange Securities. The Company shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(ia) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(iib) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iiic) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(d) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange SecuritiesSecurities 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 1933 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 with respect to the Exchange Offer or the Private Exchange which, in the Company's judgment, would reasonably be expected to impair the ability of the Company to proceed with the Exchange Offer or the Private Exchange. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Park Place Entertainment Corp)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Issuers shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost use their commercially reasonable efforts to, (iA) prepare and file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such keep the Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (ivC) commence cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 285 days after following the Closing TimeDate. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Issuers shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Issuers within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Issuers for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Issuers shall:
(ia) mail as promptly as practicable after the commencement of the Exchange Offer to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days business days after the date notice thereof is mailed to the Holders made public (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time, on the last Business Day expiration of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Initial Securities exchanged;
(ve) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Initial Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Issuers upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical to the Exchange Securities (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that the Exchange Securities, the Private Exchange Securities and the Initial 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 Initial 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, and as the Issuer Exchange Securities. The Issuers shall use its reasonable best efforts to not have the any liability under this Agreement solely as a result of such Private Exchange Securities bear not bearing the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Issuers shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Initial Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law law, rule or regulation or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder (A) it is not an affiliate of the Issuer within the meaning of (as defined in Rule 405 under the Securities Act0000 Xxx) of the Company or, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act 1933 Act, to the extent applicable; provided, however, that any this clause A shall not apply to Xxxxxxx Xxxxx & Co. or Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated for which the Issuers have agreed to file a Market-Making Registration Statement pursuant to Section 4 of this Agreement; (B) all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and (C) that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange SecuritiesSecurities 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 1933 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 with respect to the Exchange Offer or the Private Exchange which, in the Company’s judgment, would reasonably be expected to impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. Upon consummation .
(g) The Issuers represent and agree that, unless they obtain the prior consent of a majority of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange registered under the Registration Statement at such time or the approval of the counsel for the holders of Registrable Securities or the consent of the managing underwriter in connection with any underwritten offering of Registrable Securities, if issuedand each Holder represents and agrees that, unless it obtains the prior consent of the Company and Exchange any such underwriter, it will not make any offer relating to the Initial Securities held by Participating Broker-Dealersthat would constitute an “issuer free writing prospectus,” as defined in Rule 433 (an “Issuer Free Writing Prospectus”), or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the SEC. The Issuers represent that any Issuer Free Writing Prospectus, when taken together with the information in the Registration Statement and the Issuer shall have no further obligation Prospectus, will not include any untrue statement of a material fact or omit to register Registrable Securities (other than Private Exchange Securitiesstate any material fact necessary in order to make the statements therein, if issued) pursuant to Section 2(b) hereofin light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Registration Rights Agreement (NPC International Inc)
Exchange Offer. (a) To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (i) prepare and, as soon as practicable but not later than 90 days after the date of this Agreement, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Securities purchased from the Company and continued to be held by any one of the Initial Purchasers and Private Exchange SecuritiesSecurities issued in exchange therefor), if issued) for of a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day within 150 days after the Closing Timedate of this Agreement, (iii) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue issue, on or prior to 35 days after the date on which the Exchange Offer Registration Statement was declared effective by the SEC, the Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after Offer. The Exchange Securities will be issued under the Closing TimeIndenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (i) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and 1933 Act, (ii) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer Company or an affiliate of the Issuer Company for its own account, acquires (iii) acquired the Exchange Securities in the ordinary course of such Holder’s 's business and (iv) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) and to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. .
(b) In connection with the Exchange Offer, the Issuer Company shall:
(i) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days business days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5.00 p.m. (Eastern Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchanged;
(v) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. .
(c) If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it and such Securities them that have the status of an unsold allotment in the initial distribution, the Issuer shall, Company upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser Purchaser, in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company on a senior basis, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “"Private Exchange Securities”"). .
(d) The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the "TIA"), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that 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 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, as the Exchange Securities and the Issuer Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. The Company shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities.
(e) As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may bebe (to the extent not prohibited by any applicable law or applicable interpretation of the staff of the SEC), the Issuer shallCompany shall use its best efforts, on or prior to the 35th day following the date the Exchange Offer Registration Statement is declared effective by the SEC, to:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To .
(f) Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder it is not an affiliate of the Issuer within the meaning of (as defined in Rule 405 promulgated under the Securities Act1933 Xxx) xx the Company or, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities 1933 Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person to participate in the distribution (within the meaning of the 1933 Xxx) xx the Exchange Securities Actand 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 1933 Act available, (iv) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offer or the Private Exchange which, in the Company's judgment, would reasonably be expected to impair the ability of the Company to proceed with the Exchange SecuritiesOffer or the Private Exchange and (v) compliance with Section 3(f) hereof. The Issuer To the extent permitted by law and ascertainable by the Company, the Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Caprock Communications Corp)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company and the Trust shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, use their reasonable best efforts to (i) file cause to be filed with the SEC within 90 150 days after the Closing Time January 31, 1997 an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 185 days after the Closing TimeJanuary 31, 1997, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in promptly after effectiveness of the Exchange Offer Registration Statement, and (iv) keep such Exchange Offer Registration Statement effective for not later less than 225 days 20 Business Days (or longer if required by applicable law) after the Closing Timedate notice of the Exchange Offer is mailed to the Holders. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Debentures or a like liquidation amount of Exchange Capital Securities, if issued) for together with the Exchange Securities Guarantee, as applicable (assuming that such Holder (A) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, (B) acquires the Exchange Securities in the ordinary course of such Holder’s 's business and (C) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company and the Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is first mailed to the Holders (or longer if 7 9 required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;:
(iv) permit Holders to withdraw tendered Securities at any time on or prior to the close of business, New York City time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interestinterest or accumulate distributions, as the case may be, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior If any Initial Purchaser determines upon advice of its outside counsel that it is not eligible to consummation of participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Securities constituting any Securities acquired by it and such Securities have the status portion of an unsold allotment in the initial distribution, as soon as practicable upon receipt by the Issuer shall, upon Company and the Trust of a written request of from such Initial Purchaser, simultaneously with the delivery of Company and the Exchange Securities in the Exchange OfferTrust, as applicable, shall issue and deliver to such Initial Purchaser Purchasers in exchange (the “"Private Exchange”") for the Securities held by such Initial PurchaserPurchasers, a like liquidation amount of Capital Securities of the Trust, together with the Exchange Guarantee, or a like principal amount of debt securities the Subordinated Debentures of the Issuer Company, as applicable, that are identical (except that such securities shall may bear appropriate a customary legend with respect to restrictions on transfer restrictionspursuant to the Securities Act) to the Exchange Securities (the “"Private Exchange Securities”). The Private ") 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, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder will vote and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer consent together on all matters as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business one class and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) none of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.the
Appears in 1 contract
Samples: Registration Rights Agreement (Executive Risk Capital Trust)
Exchange Offer. To The Company and the extent not prohibited by any applicable law or applicable SEC policy, the Issuer Guarantors shall, for the benefit of the Holders and Holders, at their cost, (A) prepare and, not later than 180 days following the Issuer’s cost (i) Closing Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities, if issued) for of a like principal amount of Exchange Securities, (iiB) use its their commercially reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 210 days of the Closing Time, Date and (iiiC) use its their commercially reasonable best efforts to have such Registration Statement remain effective until the closing of cause the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 240 days after following the Closing TimeDate. The Exchange Securities will be issued under the Existing Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Guarantors shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s 's business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with and has made representations to the Company to that effect) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company and the Guarantors shall:
(ia) mail as promptly as practicable after the Exchange Offer Registration Statement has been declared effective under the 1933 Act to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate any letter of transmittal and any related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Registrable Securities exchanged;
(ve) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Initial Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company and the Guarantors upon the request of any such Initial PurchaserPurchaser or, if a Shelf Registration Statement is required, at the request of any Holder whose Registrable Securities are being registered thereon, shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Initial Securities held by such Initial Purchaser, or, if no Exchange Offer is consummated, upon effectiveness of the Shelf Registration Statement (together, the “Private Exchange”), a like principal amount of debt securities of the Issuer Company on a senior basis that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities and issued under the Existing Indenture (the “Private Exchange Securities”). For the avoidance of doubt, such Exchange Securities shall be likewise guaranteed by the Guarantors. The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under the Existing Indenture. The , which has been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”) and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Existing Indenture shall provide that the Existing Securities, the Exchange Securities and the Private Exchange Securities shall vote and consent together on all matters as one class and that none of the same series asExchange Securities, and the Issuer Private Exchange Securities or the Existing Securities will have the right to vote or consent as a separate class on any matter. The Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities and the Existing Securities, to the extent permitted by the CUSIP Service Bureau. Neither the Company nor any of the Guarantors shall have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities and the Existing Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company and the Guarantors shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Initial Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law last date on which interest was paid on the Registrable Securities surrendered in exchange therefor (or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete if the Exchange Offer as provided aboveSecurity or Private Exchange Security is authenticated between a record date and an interest payment date with respect to the Registrable Securities surrendered in exchange therefor, and shall comply with from such interest payment date) or, if no interest has been paid on such Registrable Securities, from the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange OfferClosing Date. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, as applicable, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange SecuritiesSecurities 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 1933 Act available, (iv) all governmental approvals which the Company reasonably deems necessary for the consummation of the Exchange Offer and the Private Exchange shall have been obtained and (v) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offer or the Private Exchange which, in the Company's judgment, would reasonably be expected to impair the ability of the Company or any of the Guarantors to proceed with the Exchange Offer or the Private Exchange. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policypolicy of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, use its best efforts to (i) file cause to be filed with the SEC within 90 60 days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause have such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 120 days after the Closing TimeIssue Date, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts and, on or prior to 30 Business Days after the date on which the Exchange Offer Registration Statement was declared effective by the SEC, issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with ) and to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date of notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Offer the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company upon the request of any such Initial PurchaserPurchaser shall, to the extent not prohibited by any applicable law or applicable policy of the SEC, use its best efforts to simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company, that are identical (to the Exchange Securities, except that (i) such securities shall bear appropriate transfer restrictionsrestrictions and (ii) the registration rights in respect thereof shall continue to the Exchange Securities apply (the “"Private Exchange Securities”"). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the Indenture or (ii) an indenture identical to all material respects to the Indenture and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that 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 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, and the Issuer Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as, the Exchange Securities. Neither the Company nor any of its Subsidiaries shall have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the applicable Exchange Securities. 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 policy 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 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 Company, (iii) all governmental approvals shall have been obtained, which approvals the Company deems necessary for the consummation of the Exchange Offer or Private Exchange and (iv) the due tendering of Registrable Securities 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 Issuer Company shall:
(i) accept for exchange all Registrable Securities or portions thereof properly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal that is an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the IssuerCompany, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff policy of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that those set forth in the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECtwo preceding paragraphs. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicableapplicable and deliver information to be used in connection with the Shelf Registration Statement within a reasonable time period in order to have their Securities included in the Shelf Registration Statement, that it is not a broker-dealer tendering Registrable Securities acquired directly from the Company for its own account, that any Exchange Securities 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 Securities. The Issuer shall Company may inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and and, if so informed, the Initial Purchasers 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(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Westpoint Stevens Inc)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (i) unless the Exchange Offer would not be permitted by applicable law or SEC policy, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities Transfer Restricted Notes (other than Private Exchange Securities, if issuedNotes (as defined below)) for a like principal amount of Exchange SecuritiesNotes, (ii) unless the Exchange Offer would not be permitted by applicable law or SEC policy, use its reasonable best efforts to cause have such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeTime (the "Target Effectiveness Date"), (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) unless the Exchange Offer would not be permitted by applicable law or SEC policy, commence the Exchange Offer and use its reasonable best efforts to issue issue, on or prior to the date which is 30 days after the date on which the Exchange Securities Offer Registration Statement was declared effective by the SEC (the "Target Consummation Date"), Exchange Notes in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly Notes tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities Transfer Restricted Notes acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with Notes) and to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities Notes at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(v) notify each Holder that any Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Offer the Initial Purchaser holds Purchasers hold any Securities Notes acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, 9 -8- the Issuer shall, Company upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities Notes in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities Notes held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities Notes (the “"Private Exchange Securities”Notes"). The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical to all material respects to the Indenture and which, in either case, 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. The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities Notes shall be of the same series as, as and the Issuer Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities Notes bear the same CUSIP number as the Exchange Notes. The Company shall not have any liability under this Agreement solely as a result of such Private Exchange Notes not bearing the same CUSIP number as the Exchange Notes. 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 Company to proceed with the Exchange SecuritiesOffer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company deems necessary for the consummation of the Exchange Offer or Private Exchange. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Securities Transfer Restricted Notes or portions thereof properly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which is an exhibit thereto;
(ii) accept for exchange all Securities duly Notes properly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Transfer Restricted Notes or portions thereof so accepted for exchange by the IssuerCompany, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security Note or Private Exchange SecurityNote, as the case may be, equal in principal amount to the principal amount of the Securities Transfer Restricted Notes surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that those set forth in the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECimmediately preceding paragraph. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities 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 with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities Transfer Restricted Notes in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company and the Trust shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, use its best efforts to (i) file cause to be filed with the SEC within 90 150 days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeIssue Date, and (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (or longer if required by applicable law) after the closing date notice of the Exchange Offer and (iv) commence is mailed to the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeHolders. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Debentures or a like liquidation amount of Exchange Capital Securities, if issued) for together with the Exchange Securities Guarantee, as applicable (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company and the Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interestinterest or accumulate distributions, as the case may be, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior If any Initial Purchaser determines upon advice of its outside counsel that it is not eligible to consummation of participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Securities constituting any Securities acquired by it and such Securities have the status portion of an unsold allotment in the initial distribution, as soon as practicable upon receipt by the Issuer shall, upon Company and the Trust of a written request of from such Initial Purchaser, simultaneously with the delivery of Company and the Exchange Securities in the Exchange OfferTrust, as applicable, shall issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like liquidation amount of Capital Securities of the Trust, together with the Exchange Guarantee, or a like principal amount of debt securities the Subordinated Debentures of the Issuer Company, as applicable, that are identical (except that such securities shall may bear appropriate a customary legend with respect to restrictions on transfer restrictionspursuant 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 (other than require minimum transfers thereof to be in blocks of $100,000 principal amount or liquidation amount, as the case may be). The Private , and that the Exchange Securities, if anythe Private Exchange Securities and the Securities will vote and consent together on all matters as one class and that neither the Exchange Securities, shall be issued under the IndenturePrivate 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, as the Exchange Securities and the Issuer shall use its reasonable best efforts Company and the Trust will seek to have cause the CUSIP Service Bureau to issue the same CUSIP Numbers for the Private Exchange Securities bear as for the same CUSIP number as Exchange Securities issued pursuant to the applicable Exchange SecuritiesOffer. As soon as practicable after the close of the Exchange Offer and/or and, if applicable, the Private Exchange, the Company and the Trust, as the case may berequires, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the applicable Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the applicable Trustee under the Indenture Indenture, the Declaration or the Guarantee, as applicable, to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may beapplicable, equal in principal amount to the 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 Holder. Distributions on each Exchange Capital Security and accepted for exchangeinterest on each Exchange Debenture and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the 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 the staff of the SEC, the Issuer Company and the Trust shall use its reasonable their best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, in the case of any Holder of Capital Securities, representations that such Holder (i) it is not an affiliate of the Issuer within Trust or the meaning of Rule 405 under Company, (ii) the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Capital Securities. The Issuer Company and the Trust shall inform the Initial Purchasers, after consultation with the Trustee and the Initial PurchasersTrustee, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer Company and the Trust shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Exchange Offer. To The Issuer shall (A) prepare and, as soon as practicable following the extent not prohibited by any applicable law or applicable SEC policyClosing Date, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under with respect to a proposed Exchange Offer and the Securities Act covering the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange SecuritiesNotes of each series, if issued) for a like principal amount of Exchange SecuritiesNotes of such series, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after not later than 180 calendar days following the Closing TimeDate, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in cause the Exchange Offer not later than 225 to be consummated within 210 calendar days after following the Closing TimeDate. The Exchange Notes will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) Notes for Exchange Securities Notes (assuming that such Holder (a) is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities Notes acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires (c) acquired the Exchange Securities Notes in the ordinary course of such Holder’s 's business and (d) has no arrangements or understandings with any Person person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with Notes) to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and without material restrictions under state the securities or “blue sky” lawslaws of a majority of the several states of the United States. In connection with the Exchange Offer, the Issuer shall:
(ia) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, Statement together with an appropriate letter of transmittal and related documents;
(iib) use its reasonable best efforts to keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days business days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Securities Registrable Notes at any time prior to the close of business, New York time, 5:00 p.m. (Eastern Time) on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal, the principal amount of Securities Registrable Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(ve) notify each Holder that any Security Registrable 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer shall:
(i) accept for exchange all Securities or portions thereof Registrable Notes duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly tendered pursuant deliver to the Private ExchangeTrustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof promptly to authenticate and deliver the respective Exchange Notes to each Holder of Registrable Notes so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, in a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount equal to the principal amount of the Securities surrendered by Registrable Notes of such Holder and so accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the The Issuer shall use its reasonable best efforts to complete keep the Exchange Offer as provided aboveRegistration Statement effective and to amend and supplement the Prospectus contained therein, and shall comply with in order to permit such Prospectus to be lawfully delivered by all Participating Broker-Dealers subject to the applicable prospectus delivery requirements of the Securities Act, 1933 Act for such period of time as such Participating Broker-Dealers must comply with such requirements in order to resell the Exchange Act Notes; provided, however, that (i) such period shall be the lesser of 90 days after the consummation of the Exchange Offer and other applicable laws the date on which all Participating Broker-Dealers have sold all Exchange Notes held by them (unless such period is extended pursuant to Section 3(k) below) and (ii) the Issuer shall make such Prospectus, and any amendment or supplement thereto, available to any such Participating Broker-Dealer for use in connection with any resale of any Exchange Notes for a period of the lesser of 90 days after the consummation of the Exchange OfferOffer and the date on which all Participating Broker-Dealers have sold all Exchange Notes held by them (unless such period is extended pursuant to Section 3(k) below). Interest on the Exchange Notes of each series will accrue from the most recent interest payment date to which interest has been paid on the respective Registrable Notes surrendered in exchange therefor or, if no interest has been paid on such Registrable Notes, from the Closing Date. The Exchange Offer shall not be subject to any conditions, other than (i) that the Exchange Offer Offer, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Notes in accordance with the Exchange Offer, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities Notes exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities Notes to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange SecuritiesNotes 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 1933 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 with respect to the Exchange Offer which, in the judgment of the Issuer, would reasonably be expected to impair the ability of the Issuer to proceed with the Exchange Offer. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities Notes in the Exchange Offer. Upon consummation Each Holder of Registrable Securities who wishes to exchange such Registrable Securities for Exchange Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that (i) it is not an affiliate of the Issuer, (ii) the Exchange Notes to be received by it were acquired in the ordinary course of its business and (iii) at the time of the Exchange Offer, it has no arrangement with any person to participate in the distribution (within the meaning of the 0000 Xxx) of the Exchange Notes. Each Holder hereby acknowledges and agrees that any Participating Broker-Dealer and any such Holder using the Exchange Offer to participate in accordance with this Section 2(a), a distribution of the provisions Exchange Notes: (1) could not under SEC policy as in effect on the date of this Agreement shall continue rely on the position of the SEC enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC's letter to applyShearman & Sterling dated July 2, mutatis mutandis1993, solely and similar no-action letters (including any no-action letter obtained based on the representation in clause (i) above), and (2) must comply with respect to Registrable Securities the registration and prospectus delivery requirements of the 1933 Act in connection with the secondary resale transaction and that are Private Exchange Securitiessuch a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Items 507 and 508, as applicable, of Regulation S-K, the SEC standard instructions for filing forms under the 1933 Act, if issued, and the resales are of Exchange Securities held Notes obtained by Participating Broker-Dealers, and such Holder in exchange for Notes acquired by such Holder directly from the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofIssuer.
Appears in 1 contract
Samples: Registration Rights Agreement (Metropolitan Edison Co)
Exchange Offer. To The Lessee and the extent not prohibited by any applicable law or applicable SEC policyLease Guarantor shall (A) prepare and, as soon as practicable following the Issuer shallClosing Date, for the benefit of the Holders and at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under with respect to a proposed Exchange Offer and the Securities Act covering the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange SecuritiesCertificates, if issued) for a like principal amount of Exchange SecuritiesCertificates, (iiB) use its their reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after not later than 210 calendar days following the Closing TimeDate, (iiiC) use its their reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence the Exchange Offer and use its their reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in cause the Exchange Offer not later than 225 to be consummated within 270 calendar days after following the Closing TimeDate. The Exchange Certificates will be issued under the Pass Through Trust Agreement. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Pass Through Trustee shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) Certificates for Exchange Securities Certificates (assuming that such Holder (a) is not an affiliate Affiliate of the Issuer Lessee or the Lease Guarantor within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities Certificates acquired directly from the Issuer Pass Through Trust, the Lessee or an affiliate of the Issuer Lease Guarantor for its own account, acquires (c) acquired the Exchange Securities Certificates in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with Certificates) to transfer such Exchange Securities, Certificates from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and without material restrictions under state the securities or “blue sky” lawslaws of a majority of the several states of the United States. In connection with the Exchange Offer, the Issuer Lessee and the Lease Guarantor shall:
(ia) mail to each Holder the Depositary a copy of the Prospectus forming part of the Exchange Offer Registration Statement, Statement together with an appropriate letter of transmittal and related documents;
(iib) use their reasonable best efforts to keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days business days after the date notice thereof is mailed to the Holders Depositary (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Securities Registrable Certificates at any time prior to the close of business, New York time, 5:00 p.m. (Eastern Time) on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Registrable Certificates delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Certificates exchanged;
(ve) notify each Holder the Depositary that any Security Registrable Certificates not tendered will remain outstanding and distributions will continue to accrue interestaccumulate with respect thereto, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Lessee and the Lease Guarantor shall:
(i) accept for exchange all Securities or portions thereof Registrable Certificates duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly tendered pursuant deliver to the Private ExchangePass Through Trustee for cancellation all Registrable Certificates so accepted for exchange; and
(iii) deliver, or cause the Pass Through Trustee promptly to be delivered, authenticate and deliver the respective Exchange Certificates to the Trustee for cancellation all Securities or portions thereof each Holder of Registrable Certificates so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, in a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount equal to the principal amount of the Securities surrendered by Registrable Certificates of such Holder and so accepted for exchange. To The Lessee and the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Lease Guarantor shall use its their reasonable best efforts to complete keep the Exchange Offer as provided aboveRegistration Statement effective and to amend and supplement the Prospectus contained therein, and shall comply with in order to permit such Prospectus to be lawfully delivered by all Participating Broker-Dealers subject to the applicable prospectus delivery requirements of the Securities Act, 1933 Act for such period of time as such Participating Broker-Dealers must comply with such requirements in order to resell the Exchange Act Certificates; provided, however, that (i) such period shall end on the earlier of 90 days after the consummation of the Exchange Offer and other applicable laws the date on which all Participating Broker-Dealers have sold all Exchange Certificates held by them (unless such period is extended pursuant to Section 3.1(k) below) and (ii) the Lessee and the Lease Guarantor shall make such Prospectus, and any amendment or supplement thereto, available to any such Participating Broker-Dealer for use in connection with any resale of any Exchange Certificates for a period ending on the earlier of 90 days after the consummation of the Exchange OfferOffer and the date on which all Participating Broker-Dealers have sold all Exchange Certificates held by them (unless such period is extended pursuant to Section 3.1(k) below). Distributions on the Exchange Certificates will accumulate from the most recent distribution payment date to which distributions have been paid on the respective Registrable Certificates surrendered in exchange therefor or, if no distributions have been paid on such Registrable Certificates, from the Closing Date. The Exchange Offer shall not be subject to any conditions, other than (i) that the Exchange Offer Offer, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Certificates in accordance with the Exchange Offer, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities Certificates exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented (x) that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities Certificates to be received by it will shall be acquired in the ordinary course of its business (y) that it is not an Affiliate of the Lessee or the Lease Guarantor and (z) that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange SecuritiesCertificates 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 1933 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 with respect to the Exchange Offer which, in the judgment of the Lessee or the Lease Guarantor, would reasonably be expected to impair the ability of the Lessee and the Lease Guarantor to proceed with the Exchange Offer. The Issuer Lessee and the Lease Guarantor shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities Certificates in the Exchange Offer. Upon Each Holder of Registrable Certificates who wishes to exchange such Registrable Certificates for Exchange Certificates in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that (i) all Exchange Certificates to be received by it were acquired in the ordinary course of its business, (ii) it is not an Affiliate of the Lessee or the Lease Guarantor and (iii) at the time of the consummation of the Exchange Offer it shall have no arrangement or understanding with any person to participate in accordance with this Section 2(a)the distribution (within the meaning of the 0000 Xxx) of the Exchange Certificates and shall have made such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the provisions use of Form S-4 or other appropriate form under the 1933 Act available. Each Holder hereby acknowledges and agrees that any Participating Broker-Dealer and any such Holder using the Exchange Offer to participate in a distribution of the Exchange Certificates: (1) could not under SEC policy as in effect on the date of this Agreement shall continue rely on the position of the SEC enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC’s letter to applyShearman & Sterling dated July 2, mutatis mutandis1993, solely and similar no-action letters (including any no-action letter obtained based on the representation in clause (i) above), and (2) must comply with respect to Registrable Securities the registration and prospectus delivery requirements of the 1933 Act in connection with the secondary resale transaction and that are Private Exchange Securitiessuch a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Items 507 and 508, as applicable, of Regulation S-K, the SEC standard instructions for filing forms under the 1933 Act, if issuedthe resales are of Exchange Certificates obtained by such Holder in exchange for Certificates acquired by such Holder directly from the Pass Through Trust, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofLessee or the Lease Guarantor or an Affiliate of the Lessee or the Lease Guarantor.
Appears in 1 contract
Exchange Offer. To Unless the extent not prohibited by any Exchange Offer would violate applicable law or any applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost cost, use its commercially reasonable efforts to (iA) prepare and not later than 270 calendar days following the date of this Agreement, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all for each Series of the Registrable Securities (other than Private Exchange Securities, if issued) for of a like principal amount of the corresponding Series of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing TimeAct, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 455 calendar days after following the Closing Timedate of this Agreement. Upon After the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate Affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and Company, (b) is not a broker-dealer tendering Registrable Securities New Disney Notes acquired directly from the Issuer or an affiliate of the Issuer Company for its own accountaccount in exchange for Exchange Securities, acquires (c) is acquiring the Exchange Securities in the ordinary course of such Holder’s business and (d) is not engaged in and does not intend to engage in and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose distribution of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. 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 (which representation shall be contained in the letter of transmittal or other document accompanying the Exchange Offer Registration Statement) that it (i) is not an Affiliate of the Company, (ii) is not a broker-dealer tendering New Disney Notes acquired directly from the Company for its own account in exchange for Exchange Securities, (iii) is acquiring the Exchange Securities in the ordinary course of such Holder’s business and (iv) is not engaged in and does not intend to engage in and has no arrangements or understandings with any Person to participate in the distribution of the Exchange Securities. In connection with the Exchange Offer, the Issuer Company shall:
(ia) mail make available to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days business days after the date notice thereof is mailed provided 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”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time, on the last Business Day expiration of the Exchange Period, by sending to the institution specified in the notice letter of transmittal or other applicable notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Registrable Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in exchanged or as otherwise required by the case applicable procedures of the Initial Purchasers and Participating Broker-Dealers as provided herein)Depositary; and
(vie) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. IfThe Exchange Securities shall be issued under (i) the Disney Indenture or (ii) an indenture identical in all material respects to the Disney Indenture (collectively referred to herein as the “Indenture”) and which, prior in either case, has been qualified under the Trust Indenture Act, or is exempt from such qualification. The Indenture shall provide that each Series of Exchange Securities, together with the corresponding Series of New Disney Notes originally issued on the date of this Agreement, will constitute a single series of securities under the Indenture and will vote together as a single class on all matters to consummation be voted on by the Holders under the Indenture. As soon as reasonably practicable after the expiration of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal, a form of which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly tendered pursuant deliver to the Private ExchangeTrustee for cancellation all Registrable Securities so accepted for exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all promptly to authenticate and deliver Exchange Securities or portions thereof to each Holder of Registrable Securities so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, in a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount equal to the principal amount of the corresponding Series of Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Security surrendered in exchange therefor or, if no interest has been paid on the Registrable Security, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer shall not be subject to any conditions, other than (i) that the Exchange Offer Offer, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder it (A) is not an affiliate Affiliate of the Issuer within Company, (B) is not a broker-dealer tendering New Disney Notes acquired directly from the meaning of Rule 405 under Company for its own account in exchange for Exchange Securities, (C) will acquire the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of such Holder’s business and that at the time of the commencement of the Exchange Offer it (D) is not engaged in and does not intend to engage in and has no arrangement arrangements or understandings with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer Securities and shall inform have made such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the Initial Purchasersuse of Form S-4 or other appropriate form under the Securities Act available, after consultation (iv) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with the Trustee and the Initial Purchasers, of the names and addresses of the Holders respect to whom the Exchange Offer is madewhich, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation Company’s judgment, would reasonably be expected to impair the ability of the Company to proceed with the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (v) other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofcustomary conditions.
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Company shall, for the benefit of the Holders Holders, at -------------- the Company's cost, (A) prepare and at not later than 135 calendar days following the Issuer’s cost (i) Closing Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by (the SEC on or prior to the 180th day after "Effective Date") within 180 calendar days of the Closing TimeDate, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence use its reasonable efforts to cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 45 calendar days after following the Closing TimeEffective Date. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, within the Issuer agreed-upon time limits, the Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s 's business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. 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 that it (a) is not an affiliate of the Company within the meaning of Rule 405 under the 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Company for its own account, (c) acquired the Exchange Securities in the ordinary course of such Holder's business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of distributing the Exchange Securities. In connection with the Exchange Offer, the Issuer Company shall:
(ia) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice 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”");
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company upon the request of such any Initial PurchaserPurchasers shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser Purchasers in exchange (the “"Private Exchange”") for the Securities held by such Initial PurchaserPurchasers, a like principal amount of debt securities of the Issuer Company on a senior basis, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “"Private Exchange Securities”"). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the "TIA"), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that 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 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, as and the Issuer Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number numbers as the applicable Exchange Securities. The Company shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP numbers as the Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange SecuritiesSecurities 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 1933 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 with respect to the Exchange Offer or the Private Exchange which, in the Company's judgment, would reasonably be expected to impair the ability of the Company to proceed with the Exchange Offer or the Private Exchange. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Marriott International Inc /Md/)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Operating Partnership shall, for the benefit of the Holders and Holders, at the Issuer’s cost Operating Partnership's cost, (iA) file with the SEC within use its reasonable best efforts to prepare and, as soon as practicable but not later than 90 days after the Closing Time Date, file with the Commission an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after within 135 days of the Closing TimeDate, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer Offer, and (ivD) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in cause the Exchange Offer to be consummated not later than 225 180 days after following the Closing TimeDate. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Operating Partnership shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Operating Partnership within the meaning of Rule 405 under the Securities Act and Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Operating Partnership for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and 's business, or (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Operating Partnership shall:
(ia) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Operating Partnership upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities 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 with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.the
Appears in 1 contract
Samples: Registration Rights Agreement (First Industrial Lp)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Issuers shall, for the benefit of the Holders and Holders, at the Issuer’s cost (i) file Issuers' cost, use their reasonable best efforts to cause to be filed with the SEC within 90 60 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering the offer by the Issuer Issuers to the Holders to exchange all of the Registrable Securities Notes (other than Private Exchange Securities, if issuedNotes) for a like principal amount of Exchange SecuritiesNotes, (ii) use its reasonable best efforts to cause have such Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after the Closing TimeSEC, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence to cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 150 days after the Closing Time. The Exchange Notes will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Issuers shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) Notes for Exchange Securities Notes (assuming that such Holder is not an affiliate of any of the Issuer Issuers within the meaning of Rule 405 under the Securities 1933 Act and is not a broker-dealer tendering Registrable Securities Notes acquired directly from the Issuer or an affiliate any of the Issuer Issuers for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with Notes and that each such Holder makes a representation to the Issuers to such effect) to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and without ma- terial restrictions under the securities laws of a substantial proportion of the several states of the United States under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Issuers shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities Notes at any time prior to the close of business, New York time, on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(v) notify each Holder Holder, by notice which may be included in any of the documents listed in paragraph 2(a)(i) of this Section 2, that any Security Note 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 Initial Purchasers and Participating Broker-Dealers and in connection with any Special Private Exchange as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds the Purchasers hold any Securities Notes acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Issuers upon the request of such Initial Purchaserthe Purchasers shall, simultaneously with the delivery of the Exchange Securities Notes in the Exchange Offer, issue and deliver to such Initial Purchaser the Purchasers, in exchange (the “"Private Exchange”" (which term shall also be deemed to refer to any Special Private Exchange (as defined below) unless the context otherwise requires)) for the Securities Notes held by such Initial Purchaserthe Purchasers, a like principal amount of debt securities (the "Private Exchange Notes" (which term shall also be deemed to refer to the Special Private Exchange Notes (as defined below) unless the context otherwise requires)) of the Issuer Company, guaranteed by each of the Guarantors on a senior unsecured basis, that are identical (except that such securities all of the Private Exchange Notes other than the Special Private Exchange Notes shall bear appropriate transfer restrictions) to the Exchange Securities Notes and which are issued pursuant to the Indenture (which will provide that the “Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture and that the Exchange Notes, the Private Exchange Securities”Notes (including the Special Private Exchange Notes) and the Notes will vote and consent together on all matters as one class and that neither the Exchange Notes, the Private Exchange Notes, the Special Private Exchange Notes nor the Notes will have the right to vote or consent as a separate class on any matter). The Private Exchange Securities, if any, shall be issued under Notes (including the Indenture. The Special Private Exchange Securities Notes) shall be of the same series as, as and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange SecuritiesNotes. Following the Exchange Offer, any Holder of Registrable Notes who holds such Registrable Notes in the form of Offshore Physical Securities or Offshore Global Securities (each as defined in the Indenture) and who did not participate in the Exchange Offer may present such Registrable Notes to the Company for exchange (a "Special Private Exchange") and the Company shall issue in exchange for such Registrable Notes a like principal amount of debt securities ("Special Private Exchange Notes") of the Company issued pursuant to the Indenture and guaranteed by each of the Guarantors on a senior unsecured basis which are identical to the Exchange Notes and which are of the same series and bear the same CUSIP number as the Exchange Notes. As soon as practicable after the close of the Exchange Offer and/or Offer, the Private Exchange or the Special Private Exchange, as the case may be, the Issuer Issuers shall:
(i) accept for exchange all Securities Notes or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer, Private Exchange or Special Private Exchange, as the case may be;
(ii) accept for exchange all Securities Notes duly tendered pursuant to the Exchange Offer, the Private Exchange or the Special Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Notes or portions thereof so accepted for exchange by the IssuerIssuers, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Note, Private Exchange SecurityNote or Special Private Exchange Note, as the case may be, equal in principal amount to the principal amount of the Securities Notes surrendered by such Holder and accepted for exchangeHolder. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Issuers shall use its their reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities 1933 Act, the Exchange 1934 Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) Notes who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) Notes for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of any of the Issuer Issuers within the meaning of Rule 405 under the Securities 1933 Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities 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 with any Person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange SecuritiesNotes. The Issuer Issuers shall inform the Initial Purchasers, after consultation with the Trustee and 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 Registrable Securities Notes in the Exchange Offer. In connection with any Special Private Exchange, the Company may require the Holder of Registrable Notes to provide appropriate representations or undertakings to the extent required to comply with the 1933 Act. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities Notes that are Private Exchange Securities, if issued, Notes and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Issuers shall have no further obligation to register Registrable Securities Notes (other than Private Exchange Securities, if issuedNotes) pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Samples: Notes Registration Rights Agreement (Paging Network Do Brazil Sa)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Company shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost cost, (iA) prepare and, as soon as practicable but not later than 90 days following the Closing Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its commercially reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 180 days of the Closing TimeDate, (iiiC) use its commercially reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence use commercially reasonable efforts to cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 210 days after following the Closing TimeDate. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires (c) has acquired or will acquire the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(ia) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days business days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Time), on the last Business Day business day of the Exchange Period, by sending pursuant to the institution specified instructions 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 such Holder’s election to have such Securities exchangedtransmittal;
(ve) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company upon the written request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company on a senior subordinated basis, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that 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 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, as and the Issuer Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder shall have represented that: (A) it is not an affiliate of the Issuer within the meaning of (as defined in Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements 0000 Xxx) of the Securities Act to the extent applicable, that any Company; (B) all Exchange Securities to be received by it will shall be acquired in the ordinary course of business and that its business; (C) at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange Securities; and (D) if such Holder is a Participating Broker-Dealer, it will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making activities or other trading activities and that it will deliver a prospectus in connection with any resale of such Exchange Securities; and such Holder 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 1933 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 with respect to the Exchange Offer or the Private Exchange which, in the Company’s judgment, would reasonably be expected to impair the ability of the Company to proceed with the Exchange Offer or the Private Exchange. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. (i) To the extent not prohibited by any applicable law or applicable SEC policypolicy of the SEC, the Issuer Issuers shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (iA) prepare and, as soon as practicable but not later than 120 days after the Issue Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Issuers to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (iiB) use its reasonable their best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeIssue Date, (iiiC) use its reasonable their best efforts to have keep such Registration Statement remain effective until the closing of the Exchange Offer and (ivD) use their best efforts to commence the Exchange Offer and use its reasonable best efforts and, on or prior to 240 days after the Issue Date, issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Issuers shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (A) is not an affiliate of the Issuer Issuers within the meaning of Rule 405 under the Securities Act or, if such Holder is an affiliate, that it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (B) is not a broker-dealer tendering Registrable Transfer Restricted Securities acquired directly from the Issuer or an affiliate of the Issuer Issuers for its own account, acquires (C) acquired the Exchange Securities in the ordinary course of such Holder’s 's business and (D) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with ) and to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. .
(ii) In connection with the Exchange Offer, the Issuer Issuers shall:
(iA) after the effectiveness of the Exchange Offer Registration Statement, mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iiB) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”"EXCHANGE PERIOD");
(iiiC) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivD) permit Holders to withdraw tendered Securities at any time prior to the close of business, 5:00 p.m. (New York time, ) on the last Business Day of the Exchange Period, Period by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchanged;
(vE) notify each Holder that any Security Securities not tendered or withdrawn will remain outstanding and continue to accrue interest, interest but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viF) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. .
(iii) If, prior to consummation of the Exchange Offer, an Offer the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Issuers upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”"PRIVATE EXCHANGE") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are Company, guaranteed by the Guarantors, issued pursuant to, and entitled to the benefits of, the Indenture and identical (to the Exchange Securities, except that such securities shall bear appropriate transfer restrictionsrestrictions (the "PRIVATE EXCHANGE SECURITIES").
(iv) to the The Exchange Securities (and the “Private Exchange Securities”). The Private Exchange Securities, if any, Securities shall be issued under (A) the Indenture or (B) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that 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 Private Exchange Securities shall be of the same series as, and the Issuer Company shall use its reasonable best efforts seek to have cause the CUSIP Service Bureau to issue the same CUSIP numbers for the Private Exchange Securities bear as for the Exchange Securities issued pursuant to the Exchange Offer; provided that the Company shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not having the same CUSIP number as the applicable Exchange Securities. .
(v) The Exchange Offer and the Private Exchange shall not be subject to any conditions other than (A) in the reasonable opinion of counsel to the Company, the Exchange Offer, or Private Exchange, as the case may be, does not violate applicable law or any applicable policy of the SEC, (B) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which, in the judgment of the Issuers, would reasonably be expected to impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange nor shall any material adverse development have occurred in any such action or proceeding with respect to the Issuers, (C) all governmental approvals which the Issuers deem reasonably necessary for the consummation of the Exchange Offer or Private Exchange shall have been obtained and (D) the due tendering of Transfer Restricted Securities in accordance with the terms of the Exchange Offer.
(vi) As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Issuers shall:
(iA) accept for exchange all Securities or portions thereof properly tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to Offer or the Private Exchange; and
(iiiB) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the IssuerIssuers, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, representing the same indebtedness, and for greater certainty, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. .
(vii) To the extent not prohibited by any law or applicable interpretation of the staff policy of the SEC, the Issuer Issuers shall use its reasonable their best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that (A) such Holder is not an affiliate of any of the Issuer Issuers within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, that it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that (B) it is not a broker-dealer tendering Transfer Restricted Securities acquired directly from the Issuers for its own account, (C) any Exchange Securities 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 (D) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. Each Participating Broker-Dealer will be required to acknowledge that it will deliver the Prospectus included in the Exchange Offer Registration Statement in connection with the resale of Exchange Securities to the extent it is subject to the prospectus delivery requirements of the SEC. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. .
(viii) Upon consummation of the Exchange Offer in accordance with this Section 2(a), (A) the provisions of this Agreement shall continue to apply, mutatis mutandismodified as necessary, solely with respect to Registrable Transfer Restricted Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, Dealers and Transfer Restricted Securities entitled to a Shelf Registration pursuant to the Issuer first paragraph of Section 2(b) hereof and (B) the Company shall have no further obligation to register Registrable any Transfer Restricted Securities (other than Private Exchange Securities, if issued) the registration of Transfer Restricted Securities pursuant to Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Norske Skog Canada LTD)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (iA) prepare and, as soon as practicable but not later than 60 days following the Closing Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable 6 5 best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 150 days of the Closing TimeDate, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence use its best efforts to cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 180 days after following the Closing TimeDate. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s 's business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(ia) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial 7 6 distribution, the Issuer shall, Company upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company on a senior basis, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “"Private Exchange Securities”"). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the "TIA"), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that 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 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, as and the Issuer Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. The Company shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date 8 7 of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the 1933 Xxx) xx the Exchange Securities Actand 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 1933 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 with respect to the Exchange Offer or the Private Exchange which, in the Company's judgment, would reasonably be expected to impair the ability of the Company to proceed with the Exchange SecuritiesOffer or the Private Exchange. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeIssue Date, and (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (or longer if required by applicable law) after the closing date notice of the Exchange Offer and (iv) commence is mailed to the Holders. Notwithstanding the foregoing, in the event that the Company shall determine in good faith that there is a reasonable likelihood that, or a material uncertainty as to whether, consummation of the Exchange Offer would result in an adverse tax consequence to the Company (a "Tax Contingency"), the Trust and use its reasonable best efforts to issue Exchange Securities the Company may elect, in exchange for all Registrable Securities (other than lieu of the Private Exchange Securities, if issued) properly tendered prior thereto in commencement of the Exchange Offer not later than 225 days after Offer, to file and cause to be declared effective a Shelf Registration Statement covering resales of the Closing TimeSeries A Securities as provided in Section 2(b) hereof. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Debentures or a like liquidation amount of Exchange Capital Securities, if issued) for together with the Exchange Securities Guarantee, as applicable (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company and the Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Series A Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, Period by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Series A Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Series A Securities exchanged;; 8 7
(v) notify each Holder that any Series A Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interestinterest or accumulate distributions, as the case may be, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior If any Initial Purchaser determines upon advice of its outside counsel that it is not eligible to consummation of participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Securities constituting any Securities acquired by it and such Securities have the status portion of an unsold allotment in the initial distribution, as soon as practicable upon receipt by the Issuer shall, upon Company and the Trust of a written request of from such Initial Purchaser, simultaneously with the delivery of Company and the Exchange Securities in the Exchange OfferTrust, as applicable, shall issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Series A Securities held by such Initial Purchaser, a like liquidation amount of Capital Securities of the Trust, together with the Exchange Guarantee, or a like principal amount of debt securities the Series A Debentures of the Issuer Company, as applicable, that are identical (except that such securities shall may bear appropriate a customary legend with respect to restrictions on transfer restrictionspursuant to the Securities Act) to the Exchange Securities (the “"Private Exchange Securities”). The Private ") 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, if anythe Private Exchange Securities and the Series A Securities will vote and consent together on all matters as one class and that neither the Exchange Securities, shall be issued under the IndenturePrivate Exchange Securities nor the Series A 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, as the Exchange Securities and the Issuer shall use its reasonable best efforts Company and the Trust will seek to have cause the CUSIP Service Bureau to issue the same CUSIP Numbers for the Private Exchange Securities bear as for the same CUSIP number as Exchange Securities issued pursuant to the applicable Exchange SecuritiesOffer. As soon as practicable after the close of the Exchange Offer and/or and, if applicable, the Private Exchange, the Company and the Trust, as the case may berequires, the Issuer shall:
(i) accept for exchange all Series A Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the applicable Trustee for cancellation all Series A Securities or portions thereof so accepted for exchange by the Issuer, Company and issue, the Trust; and
(iii) principal amount of the Series A Debentures or equal in liquidation amount to the liquidation amount of the Series A Capital Securities (together with the guarantee thereof) as are surrendered by such Holder. Distributions on each Exchange Capital Security and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Private Exchange Security or and interest on each Exchange Debenture and Private Exchange SecuritySecurity issued pursuant to the Registered Exchange Offer and in the Private Exchange will accumulate or accrue, as the case may be, equal from the last date on which a distribution or interest was paid on the Series A Capital Security or the Series A Debenture surrendered in principal amount to exchange therefor or, if no distribution or interest has been paid on such Series A Capital Security or Series A Debenture, from the principal amount of the Securities surrendered by such Holder and accepted for exchangeIssue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company and the Trust shall use its reasonable their best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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 SECSEC and that, with respect to any Series A Security tendered for exchange, a Tax Contingency shall not have occurred prior to the date such security is exchanged. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, in the case of any Holder of Series A Capital Securities and/or Series A Debentures, representations that such Holder (i) it is not an affiliate of the Issuer within Trust or the meaning of Rule 405 under Company, (ii) the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Capital Securities. The Issuer Company and the Trust shall inform the Initial Purchasers, after consultation with the Trustee and the Initial PurchasersTrustee, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer Company and the Trust shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Samples: Registration Rights Agreement (K N Capital Trust One)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Corporation and the Trust shall, for the benefit of the Holders and Holders, at the Issuer’s cost Corporation's cost, use its best efforts to (i) file cause to be filed with the SEC within 90 150 days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeIssue Date, and (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (or longer if required by applicable law) after the closing date notice of the Exchange Offer and (iv) commence is mailed to the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeHolders. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Corporation and the Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Debentures or a like liquidation amount of Exchange Capital Securities, if issued) for together with the Exchange Securities Guarantee, as applicable (assuming that such Holder is not an affiliate of the Issuer Corporation within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Corporation for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Corporation and the Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivv) (permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(vvi) notify each Holder that any Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interestinterest or accumulate distributions, as the case may be, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vivii) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior If any Initial Purchaser determines upon advice of its outside counsel that it is not eligible to consummation of participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Securities constituting any Securities acquired by it and such Securities have the status portion of an unsold allotment in the initial distribution, as soon as practicable upon receipt by the Issuer shall, upon Corporation and the Trust of a written request of from such Initial Purchaser, simultaneously with the delivery of Corporation and the Exchange Securities in the Exchange OfferTrust, as applicable, shall issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like liquidation amount of Capital Securities of the Trust, together with the Exchange Guarantee, or a like principal amount of debt securities the Subordinated Debentures of the Issuer Corporation, as applicable, that are identical (except that such securities shall may bear appropriate a customary legend with respect to restrictions on transfer restrictionspursuant to the Securities Act) to the Exchange Securities (the “"Private Exchange Securities”). The Private ") 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, if anythe Private Exchange Securities and the Securities will vote and consent together on all matters as one class and that neither the Exchange Securities, shall be issued under the IndenturePrivate 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, as the Exchange Securities and the Issuer shall use its reasonable best efforts Corporation and the Trust will seek to have cause the CUSIP Service Bureau to issue the same CUSIP Numbers for the Private Exchange Securities bear as for the same CUSIP number as Exchange Securities issued pursuant to the applicable Exchange SecuritiesOffer. As soon as practicable after the close of the Exchange Offer and/or and, if applicable, the Private Exchange, the Corporation and the Trust, as the case may berequires, the Issuer shall:
(iviii) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(iiix) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities 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 with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities Excha(other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (United National Bancorp)
Exchange Offer. To the extent not prohibited by any applicable -------------- law or applicable SEC policy, the Issuer Issuers shall, for the benefit of the Holders and Holders, at the Issuer’s Issuers' cost (i) file with the SEC within 90 60 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 120 days after the Closing Time, (iii) use its commercially reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its commercially reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 30 days after the Closing Timedate on which the Exchange Offer Registration Statement was declared effective by the SEC. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Issuers shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Issuers for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Issuers shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");; ---------------
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchanged;
(v) notify each Holder that any Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Issuers upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial ---------------- Purchaser, a like principal amount of debt securities of the Issuer Company that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “"Private Exchange Securities”"). --------------------------- The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the Indenture or (ii) an indenture identical to the Indenture in all material respects and which, in either case, has been qualified under the TIA and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that 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 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, and the Issuer Issuers shall use its their commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as as, the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Issuers shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the IssuerCompany, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Issuers shall use its their commercially reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer Issuers within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities 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 with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis ------- mutandis, solely with respect to Registrable Securities that are Private -------- Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Broker- Dealers, and the Issuer Issuers shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, use its best efforts to (i) file cause to be filed with the SEC within 90 150 days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeIssue Date, and (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (or longer if required by applicable law) after the closing date notice of the Exchange Offer and (iv) commence is mailed to the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeHolders. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interestinterest or accumulate distributions, as the case may be, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); andAgreement
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior If the Initial Purchaser determines upon advice of its outside counsel that it is not eligible to consummation of participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Securities constituting any Securities acquired by it and such Securities have the status portion of an unsold allotment in the initial distribution, as soon as practicable upon receipt by the Issuer shall, upon Company of a written request from the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, Company shall issue and deliver to such the Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such the Initial Purchaser, a like principal amount of debt securities the Securities of the Issuer Company, as applicable, that are identical (except that such securities shall may bear appropriate a customary legend with respect to restrictions on transfer restrictionspursuant to the Securities Act) to the Exchange Securities (the “"Private Exchange Securities”") and which are issued pursuant to the Indenture (which provides that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture (other than require minimum transfers thereof to be in blocks of $100,000 principal amount or liquidation amount, as the case may be). The Private , and that the Exchange Securities, if anythe Private Exchange Securities and the Securities will vote and consent together on all matters as one class and that neither the Exchange Securities, shall be issued under the IndenturePrivate 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, as the Exchange Securities and the Issuer shall use its reasonable best efforts Company will seek to have cause the CUSIP Service Bureau to issue the same CUSIP Numbers for the Private Exchange Securities bear as for the same CUSIP number as Exchange Securities issued pursuant to the applicable Exchange SecuritiesOffer. As soon as practicable after the close of the Exchange Offer and/or and, if applicable, the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may beapplicable, equal in principal amount to the principal amount of the Securities as are surrendered by such Holder Holder. Interest on each Exchange Security issued pursuant to the Registered Exchange Offer and accepted for exchangeinterest on each Private Exchange Security issued in the Private Exchange will accrue from the last date on which interest was paid on the Security surrendered in exchange therefore or, if no interest has been paid on such Security, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities 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 with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Samples: Registration Rights Agreement (First Palm Beach Bancorp Inc)
Exchange Offer. To The Issuer and the extent not prohibited by any applicable law or applicable SEC policy, the Issuer Guarantors shall, for the benefit of the Holders and Holders, at the Issuer’s cost Issuer and Guarantors’ expense, (ia) use their commercially reasonable efforts to file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities, if issued) for of a like principal amount of Exchange Securities, (iib) use its their commercially reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 335 days of the Closing TimeDate, (iiic) use its their commercially reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer Offer, (d) use their commercially reasonable efforts to cause the Exchange Offer, if it has been commenced, to be consummated not later than 365 days following the Closing Date and (ive) commence for a period of 90 days following the consummation of the Exchange Offer and (or such shorter period of time during which the Participating Broker-Dealers are required by law to deliver a prospectus), to make available a prospectus meeting the requirements of the 1933 Act to any Participating Broker-Dealer for use its reasonable best efforts to issue in connection with any resale of any Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto acquired in the Exchange Offer not later than 225 days after Offer. The Exchange Securities will be issued under the Closing TimeIndenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly shall, as soon as practicable, commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (i) is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and 1933 Act, (ii) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires (iii) acquired the Exchange Securities in the ordinary course of such Holder’s business and (iv) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with Securities and is not prohibited by any law or policy from participating in the Exchange Offer) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer and the Guarantors shall:
(ia) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal (if relevant) and related documents, provided that the Issuer and the Guarantors shall only be required to mail such Prospectus to Holders of which they are aware after due inquiry;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days business days (as defined in Rule 13e-4 of the 0000 Xxx) after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York City time, on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Registrable Securities exchanged;
(ve) notify each Holder that any Registrable Security 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 Initial Purchasers Dealer Managers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the The Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under (a) the Indenture or (b) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the TIA, or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Private Indenture or such other indenture shall provide that the Securities of any series and the equivalent Exchange Securities of such series shall be vote and consent together on all matters as one class and that none of the same Securities of any series as, and or the Issuer shall use its reasonable best efforts to equivalent Exchange Securities of such series will have the Private right to vote or consent as a separate class on any matter other than those matters which may affect only that particular series of Securities or the equivalent Exchange Securities bear the same CUSIP number as the applicable Exchange Securitiesof such series. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer shall:
(iI) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal (if relevant) which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iiiII) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange; and
(III) cause the Trustee promptly to authenticate and deliver Exchange Securities to each Holder of Registrable Securities so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, in a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation of last date on which interest was paid on the staff of Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the SECRegistrable Securities, from the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange OfferClosing Date. The Exchange Offer shall not be subject to any conditions, other than (A) that the Exchange Offer Offer, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (B) the valid tendering of Registrable Securities in accordance with the Exchange Offer, (C) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any (i) all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Securities or Exchange Securities, (ii) it is not prohibited by any law or policy from participating in the Exchange Offer, (iii) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of Exchange Securities (iv) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making activities or other trading activities and it will be required to acknowledge that it will deliver a Prospectus in connection with any resale of Exchange Securities and (v) it shall have made such other representations as may be reasonably requested by the Issuer, or as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form F-4 or other appropriate form under the 1933 Act available, (E) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offer which, in the Issuer’s judgment, would reasonably be expected to impair the ability of the Issuer to proceed with the Exchange Offer and (F) that the Exchange Offer will be made to all Holders other than to any Holder of the European Economic Area to whom the Exchange Offer cannot be made without requiring the production of a prospectus for the purposes of the Directive 2003/71/EC (which may be certified or validated by way of representations from Holders of Registrable Securities). The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Dealer Managers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Dealer Managers shall have the right right, subject to applicable law, 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(a)Agreement, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Issuer and Exchange Securities held by Participating Broker-Dealers, and the Issuer Guarantors shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofClause 2.2 of this Agreement.
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Company shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost cost, (i) unless the Exchange Offer would not be permitted by applicable law or SEC policy, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities Transfer Restricted Notes (other than Private Exchange Securities, if issuedNotes (as defined below)) for a like principal amount of Exchange SecuritiesNotes, (ii) unless the Exchange Offer would not be permitted by applicable law or SEC policy, use its reasonable best efforts to cause have such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day not later than 150 days after the Closing TimeTime (the “Target Effectiveness Date”), (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) unless the Exchange Offer would not be permitted by applicable law or SEC policy, commence the Exchange Offer and use its reasonable best efforts to issue issue, on or prior to the 180th day after the Closing Time (the “Target Consummation Date”), Exchange Securities Notes in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly Notes tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to participate in the Exchange Offer to exchange Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities Transfer Restricted Notes acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with Notes) and to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business 30 calendar Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities Notes at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(v) notify each Holder that any Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities Notes acquired by it them and such Securities have the status of an unsold allotment not having been sold in the initial distribution, the Issuer shall, Company upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities Notes in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities Notes held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities Notes (the “Private Exchange SecuritiesNotes”). The Exchange Notes and the Private Exchange Securities, if any, Notes shall be issued under (i) the Indenture or (ii) an indenture identical to all material respects to the Indenture and that, in either case, 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 Securities 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. The Private Exchange Notes shall be of the same series as, as and the Issuer Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities Notes bear the same CUSIP number as the Exchange Notes. The Company shall not have any liability under this Agreement solely as a result of such Private Exchange Notes not bearing the same CUSIP number as the Exchange Notes. 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 that might materially impair the ability of the Company to proceed with the Exchange SecuritiesOffer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company deems necessary for the consummation of the Exchange Offer or Private Exchange. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Securities Transfer Restricted Notes or portions thereof properly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal that is an exhibit thereto;
(ii) accept for exchange all Securities duly Notes properly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Transfer Restricted Notes or portions thereof so accepted for exchange by the IssuerCompany, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security Note or Private Exchange SecurityNote, as the case may be, equal in principal amount to the principal amount of the Securities Transfer Restricted Notes surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, above and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities 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 with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities Transfer Restricted Notes in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities Transfer Restricted Notes that are Private Exchange Securities, if issued, Notes and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register Registrable Securities Transfer Restricted Notes (other than Private Exchange Securities, if issuedNotes) pursuant to Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Mandalay Resort Group)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policypolicy of the SEC, the Issuer Issuers shall, for the benefit of the Holders and Holders, at the Issuer’s cost Issuers' cost, (i) file cause to be filed with the SEC within 90 120 days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Issuers to the Holders to exchange all of the Registrable Transfer Restricted Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its their commercially reasonable best efforts to cause have such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeIssue Date, (iii) use its their commercially reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) use their commercially reasonable best efforts to commence the Exchange Offer and use its reasonable best efforts and, on or prior to 210 days after the Issue Date, issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Issuers shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Transfer Restricted Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Issuers within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Transfer Restricted Securities acquired directly from the Issuer or an affiliate of the Issuer Issuers for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with ) and to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Issuers shall:
(i) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York 5:00 p.m. (Eastern time, ) on the last Business Day 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 such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, Offer an Initial Purchaser holds any Securities acquired by it and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Issuers upon the request of such Initial PurchaserPurchaser shall, to the extent not prohibited by any applicable law or applicable policy of the SEC, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company, guaranteed by the Guarantors, that are issued pursuant to, and entitled to the benefits of, the Indenture and are identical (to the Exchange Securities, except that such securities shall bear appropriate transfer restrictionsrestrictions (the "Private Exchange Securities"). The Exchange Securities and the Private Exchange 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, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Securities (other than the “Private Exchange Securities”)) shall not be subject to the transfer restrictions set forth in the Indenture. The Private Indenture or such indenture shall provide that the Exchange Securities, if anythe Private Exchange Securities and the Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, shall be issued under the IndenturePrivate Exchange Securities or 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, and the Issuer Issuers shall use its their commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as, the Exchange Securities. The Issuers shall use their commercially reasonable best efforts to have the Exchange Securities bear the same CUSIP number as the Outstanding Notes. The Issuers shall not have any liability hereunder solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities or the Exchange Securities not bearing the same CUSIP number as the Outstanding Notes. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) in the reasonable opinion of counsel to the Issuers, the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable policy 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 SecuritiesOffer or the Private Exchange nor shall any material adverse development have occurred in any such action or proceeding with respect to the Issuers, (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 due tendering of Transfer Restricted Securities 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 Issuer Issuers shall:
(i) accept for exchange all Transfer Restricted Securities or portions thereof properly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal that is an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Transfer Restricted Securities or portions thereof so accepted for exchange by the IssuerIssuers, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Transfer Restricted Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff policy of the SEC, the Issuer Issuers shall use its their commercially reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with 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. Each Holder of Registrable Transfer Restricted Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Transfer Restricted Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer Issuers within the meaning of Rule 405 under the Securities Act, or if that it is such an affiliate, it will comply with not a broker-dealer tendering Transfer Restricted Securities acquired directly from the registration and prospectus delivery requirements of the Securities Act to the extent applicableCompany for its own account, that any Exchange Securities 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 Securities. Each Participating Broker-Dealer and affiliate of any of the Issuers within the meaning of Rule 405 under the Securities Act will be required to acknowledge that it will deliver the Prospectus included in the Exchange Offer Registration Statement in connection with the resale of Exchange Securities to the extent it is subject to the prospectus delivery requirements of the SEC. The Issuer Issuers shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Transfer Restricted Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Transfer Restricted Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, Dealers and the Issuer shall have no further obligation Transfer Restricted Securities entitled to register Registrable Securities (other than Private Exchange Securities, if issued) a Shelf Registration pursuant to the first paragraph of Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Atrium Companies Inc)
Exchange Offer. To Unless the extent not prohibited by any Exchange Offer would violate applicable law or any applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost cost, use its commercially reasonable efforts to (iA) prepare and file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all for each Series of the Registrable Securities (other than Private Exchange Securities, if issued) for of a like principal amount of the corresponding Series of Exchange Securities, (iiB) use its reasonable best efforts to cause such keep the Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (ivC) commence cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 365 calendar days after following the Closing TimeExchange Date. Upon After the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate Affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and Company, (b) is not a broker-dealer tendering Registrable Securities who tendered Existing Newcrest Notes acquired directly from the Issuer or an affiliate of the Issuer Newcrest Finance for its own accountaccount in exchange for New Newmont Notes, acquires (c) is acquiring the Exchange Securities in the ordinary course of such Hxxxxx’s business and (d) is not engaged in and does not intend to engage in and has no arrangements or understandings with any Person to participate in the distribution of the Exchange Securities) to transfer such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and under state securities or blue sky laws. 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 that it (i) is not an Affiliate of the Company, (ii) is not a broker-dealer who tendered Existing Newcrest Notes acquired directly from Newcrest Finance for its own account in exchange for New Newmont Notes, (iii) is acquiring the Exchange Securities in the ordinary course of such Holder’s business and (iv) is not engaged in and does not intend to engage in and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose distribution of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer Company shall:
(ia) mail make available to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and any related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days business days after the date notice 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”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time, on the last Business Day expiration of the Exchange Period, by sending to Period in accordance with the institution specified terms and conditions set forth 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 such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein)Exchange Offer Registration Statement; and
(vie) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. IfThe Exchange Securities shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, prior to consummation in either case, has been qualified under the Trust Indenture Act. The Indenture or such indenture shall provide that each Series of Exchange Securities and the corresponding Series of Registrable Securities shall vote and consent together on all matters as a single class. As soon as reasonably practicable after the expiration of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement;
(ii) accept for exchange all Securities duly tendered pursuant deliver to the Private ExchangeTrustee for cancellation all Registrable Securities so accepted for exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all promptly to authenticate and deliver Exchange Securities or portions thereof to each Holder of Registrable Securities so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, in a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount equal to the principal amount of the corresponding Series of Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Security surrendered in exchange therefor or, if no interest has been paid on the Registrable Security, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer shall not be subject to any conditions, other than (i) that the Exchange Offer Offer, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder it (A) is not an affiliate Affiliate of the Issuer within Company, (B) is not a broker-dealer who tendered Existing Newcrest Notes acquired directly from Newcrest Finance for its own account in exchange for New Newmont Notes, (C) will acquire the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of such Holder’s business and that at the time of the commencement of the Exchange Offer it (D) is not engaged in and does not intend to engage in and has no arrangement arrangements or understandings with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer Securities and shall inform have made such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the Initial Purchasers, after consultation 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 with the Trustee and the Initial Purchasers, of the names and addresses of the Holders respect to whom the Exchange Offer is madewhich, and in the Initial Purchasers shall have Company’s judgment, would reasonably be expected to impair the right ability of the Issuers or the Subsidiary Guarantor to contact such Holders and otherwise facilitate the tender of Registrable Securities in proceed with the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (i) unless the Exchange Offer would not be permitted by applicable law or SEC policy, file with the SEC within 90 days nine months after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities Transfer Restricted Notes (other than Private Exchange Securities, if issuedNotes (as defined below)) for a like principal amount of Exchange SecuritiesNotes, (ii) unless the Exchange Offer would not be permitted by applicable law or SEC policy, use its reasonable best efforts to cause have such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 13 months after the Closing TimeTime (the "Target Effectiveness Date"), (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) unless the Exchange Offer would not be permitted by applicable law or SEC policy, commence the Exchange Offer and use its reasonable best efforts to issue issue, on or prior to the 21st Business Day after the date on which the Exchange Securities Offer Registration Statement was declared effective by the SEC (the "Target Consummation Date"), Exchange Notes in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly Notes tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities Transfer Restricted Notes acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with Notes) and to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities Notes at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(v) notify each Holder that any Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Offer the Initial Purchaser holds Purchasers hold any Securities Notes acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities Notes in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities Notes held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities Notes (the “"Private Exchange Securities”Notes"). The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical to all material respects to the Indenture and which, 9 in either case, 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. The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities Notes shall be of the same series as, as and the Issuer Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities Notes bear the same CUSIP number as the Exchange Notes. The Company shall not have any liability under this Agreement solely as a result of such Private Exchange Notes not bearing the same CUSIP number as the Exchange Notes. 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 Company to proceed with the Exchange SecuritiesOffer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company deems necessary for the consummation of the Exchange Offer or Private Exchange. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Securities Transfer Restricted Notes or portions thereof properly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which is an exhibit thereto;
(ii) accept for exchange all Securities duly Notes properly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Transfer Restricted Notes or portions thereof so accepted for exchange by the IssuerCompany, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security Note or Private Exchange SecurityNote, as the case may be, equal in principal amount to the principal amount of the Securities Transfer Restricted Notes surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that those set forth in the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECimmediately preceding paragraph. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities 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 with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities Transfer Restricted Notes in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities Transfer Restricted Notes that are Private Exchange Securities, if issued, Notes and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register Registrable Securities Transfer Restricted Notes (other than Private Exchange Securities, if issuedNotes) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (iA) prepare and, as soon as practicable but not later than 150 days following the Closing Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 210 days of the Closing TimeDate, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence use its best efforts to cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 240 days after following the Closing TimeDate. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s 's business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(ia) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security 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 Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company on a senior basis, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “"Private Exchange Securities”"). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the "TIA"), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that 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 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, as and the Issuer Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. The Company shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act0000 Xxx) of the Exchange SecuritiesSecurities 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 1933 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 with respect to the Exchange Offer or the Private Exchange which, in the Company's judgment, would reasonably be expected to impair the ability of the Company to proceed with the Exchange Offer or the Private Exchange. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, 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 Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Mettler Toledo International Inc/)
