Exchange Offer. (a) Parent and the Company shall (and shall cause each other Guarantor to) (i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their commercially reasonable efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their commercially reasonable efforts to issue on or prior to 30 days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any law or applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer. (b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) and (ii) the Collateral Agreements.
Appears in 4 contracts
Samples: Registration Rights Agreement (Vantage Drilling CO), Registration Rights Agreement (Vantage Drilling CO), Registration Rights Agreement (Vantage Drilling CO)
Exchange Offer. (a) Parent To the extent not prohibited by any applicable law or applicable interpretation of the staff of the Commission, the Issuer and the Company Guarantors shall (and shall cause each other Guarantor to) (iA) prepare and file with and, on or prior to 90 days (the SEC promptly "Filing Date") after the date hereof, but in no event later than of the Filing Date, a registration statement original issuance of the Notes (the “Exchange "Issue Date"), file with or confidentially submit to the Commission a Registration Statement”) on an appropriate form Statement under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (iiB) use their commercially reasonable best efforts to cause the Exchange Registration Statement relating to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence to be declared effective by the Exchange Offer and use their commercially reasonable efforts to issue Commission under the Securities Act on or prior to 30 180 days after the date on which Issue Date, and (C) upon the Exchange declaration of the effectiveness of such Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in commence the Exchange Offer. The Exchange Offer shall be registered pursuant to the Securities Act on an appropriate form (the "Exchange Registration Statement") and duly registered or qualified under all applicable state securities or Blue Sky laws and will comply with all applicable tender offer rules and regulations under the Exchange Act and state securities or blue sky laws. The Exchange Offer shall not be subject to any conditionscondition, other than that (i) the Exchange Offer does not violate any applicable law or applicable rule, regulation or interpretation of the staff of the SECCommission. Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuer and Guarantors shall have no further registration obligations other than with respect to (i) Private Exchange Notes, (ii) no action, suit or proceeding shall have been instituted or threatened in any court or Exchange Notes held by any governmental agency which might materially impair the ability of the Company to proceed with the Exchange Offer, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company Participating Broker-Dealers and (iii) all governmental approvals Notes or Exchange Notes as to which Section 3(a)(iii) or Section 3(a)(v) hereof applies. No securities shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of be included in the Exchange OfferRegistration Statement other than the Exchange Notes.
(b) The Issuer may require each holder of Notes, as a condition to its participation in the Exchange Offer, to represent to the Issuer and its counsel in writing (which may be contained in the applicable letter of transmittal), among other things, that (i) any Exchange Notes received by such holder will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer such holder will have no arrangement or understanding with any person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the Securities Act, and (iii) such holder is not an Affiliate (as defined in Rule 405 promulgated under the Securities Act) of the Issuer. If the holder is not a broker-dealer, it will be required to represent that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Notes. If the holder is a Participating Broker-Dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making activities or other trading activities, it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Notes.
(c) If, prior to consummation of the Exchange Offer, any of the Initial Purchasers holds any Notes acquired by it having, or which are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, or any other holder of Notes is not entitled to participate in the Exchange Offer, the Issuer and Guarantors, upon the request of any Initial Purchaser or any such holder, shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to such Initial Purchaser and any such holder, in exchange (the "Private Exchange") for such Notes held by such Initial Purchaser and any such holder, a like principal amount of debt securities of the Issuer and Guarantors that are identical in all material respects to the Exchange Notes (including any guarantees thereof) (the "Private Exchange Notes"). The Issuer and the Guarantors shall use their reasonable best efforts to cause the Private Exchange Notes to bear the same CUSIP number as the Exchange Notes.
(d) Unless the Exchange Offer would not be permitted by any applicable law or interpretation of the staff of the Commission, the Issuer shall mail the Exchange Offer Prospectus and appropriate accompanying documents, including appropriate letters of transmittal, to each holder of Notes providing, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Notes validly tendered and not withdrawn will be accepted for exchange;
(ii) that a holder of a Note electing to have a Note exchanged pursuant to the Exchange Offer will be required to surrender such Note, together with the enclosed letters of transmittal, to the institution and at the address specified in the notice prior to the close of business on the date the Exchange Offer expires; and
(iii) that holders of Notes that do not tender all such securities pursuant to the Exchange Offer may no longer have any registration rights hereunder with respect to Notes not tendered. Upon the Consummation Date, the Issuer shall:
(i) accept for exchange all Notes or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Notes or portions thereof so accepted for exchange by the Issuer, and issue, cause the Trustee under the Indenture (or the indenture pursuant to which the Exchange Notes are issued) to authenticate, and mail to each holder of Notes, Exchange Notes equal in principal amount to the principal amount of the Notes surrendered by such holder.
(e) The Issuer, the Guarantors and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that owns Exchange Notes that were received by such broker-dealer for its own account in the Exchange Offer (a "Participating Broker-Dealer") may be deemed to be an "underwriter" within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes. The Issuer, the Guarantors and the Initial Purchasers also acknowledge that it is the Commission staff's position that if the Prospectus contained in the Exchange Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell Exchange Notes acquired by such Participating Broker Dealer in exchange for Transfer Restricted Notes acquired as a result of market making or other trading activities, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them (except to the extent required by the Commission as a result of a change in policy after the date hereof), such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer, each of the Issuer and Guarantors agrees (x) to keep the Exchange Registration Statement continuously effective (subject to the last three paragraphs of Section 5) until the earlier of 90 days after the Consummation Date, and such date when each Participating Broker-Dealer shall have notified the Issuer in writing that such Participating Broker-Dealer has resold all Exchange Notes acquired in the Exchange Offer and (y) to comply with the provisions of Section 5 of this Agreement, as they relate to the Exchange Offer and the Exchange Registration Statement.
(f) The Initial Purchasers shall have no liability to any Participating Broker-Dealer with respect to any request made pursuant to Section 2(e).
(g) Interest on each Exchange Note or Private Exchange Note will accrue (A) from the later of (i) the last interest payment date on which interest was paid on the Note surrendered in exchange therefor, or (ii) if the Note is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B) if no interest has been paid on the Notes, from the Issue Date.
(h) The Exchange Notes and the Private Exchange Notes may be issued under, and entitled to the benefits of, under (i) 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 qualifications thereof under the TIA) and (ii) an indenture identical in all material respects to the Collateral AgreementsIndenture, which in either event shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the holders of the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that neither the holders of the Exchange Notes, the Private Exchange Notes nor the Notes will have the right to vote or consent as a separate class on any matter.
Appears in 4 contracts
Samples: Purchase Agreement (Bluewater Offshore Production Systems Usa Inc), Registration Rights Agreement (Bluewater Offshore Production Systems Usa Inc), Purchase Agreement (Bluewater Offshore Production Systems Usa Inc)
Exchange Offer. Upon the occurrence of an Exchange Offer in accordance with the Registration Rights Agreement, the Company will issue and, upon receipt of a Company Order in accordance with Section 2.05 hereof, the Trustee will authenticate (i) Unrestricted Definitive Subordinated Notes in an aggregate principal amount equal to the principal amount of the Restricted Definitive Subordinated Notes tendered in such Exchange Offer for acceptance by each Person that certifies in the applicable Letter of Transmittal that (a) Parent it is not an affiliate (as defined in Rule 405 under the Securities Act) of the Company, (b) any Exchange Notes to be received by it will be acquired in the ordinary course of business, (c) it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes and (d) it is not acting on behalf of any Person who could not truthfully make the Company shall statements set forth in clauses (a), (b) and (c) immediately above, and shall cause each be required to make such other Guarantor to) (i) prepare and file with representations as may be reasonably necessary under applicable Commission rules, regulations or interpretations to render the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an use of Form S-4 or another appropriate form under the Securities Act with respect to an offer (available or, if permitted by the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange NotesCompany, (ii) one or more Unrestricted Global Subordinated Notes in an aggregate principal amount equal to the aggregate principal amount of the beneficial interests in the Restricted Global Subordinated Notes tendered in such Exchange Offer for acceptance by each Person that certifies in the applicable Letter of Transmittal that (w) it is not an affiliate (as defined in Rule 405 under the Securities Act) of the Company, (x) any Exchange Notes to be received by it will be acquired in the ordinary course of business, (y) it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes and (z) it is not acting on behalf of any Person who could not truthfully make the statements set forth in clauses (w), (x) and (y) immediately above, and shall be required to make such other representations as may be reasonably necessary under applicable Commission rules, regulations or interpretations to render the use their commercially reasonable efforts to of Form S-4 or another appropriate form under the Securities Act available. Concurrently with the issuance of such Unrestricted Global Subordinated Notes upon exchange of Restricted Global Subordinated Notes, the Trustee will cause the Exchange Registration Statement aggregate principal amount of the applicable Restricted Global Subordinated Notes to become effective as promptly as practicable be reduced accordingly, and the Company will execute and the Trustee will authenticate and deliver to the Persons designated by the Holders of Restricted Definitive Subordinated Notes so accepted Unrestricted Definitive Subordinated Notes in the applicable principal amount. Any Subordinated Notes that remain outstanding after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their commercially reasonable efforts to issue on or prior to 30 days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any law or applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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 such Exchange Offer, and no material adverse development shall have occurred Exchange Notes issued in any existing actionconnection with such Exchange Offer, suit or proceeding with respect to will be treated as a single class of securities under this Indenture. For the Company and (iiiavoidance of doubt, the only remedy for breach of registration rights is the Additional Interest set forth in Section 2(e) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange OfferRegistration Rights Agreement.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) and (ii) the Collateral Agreements.
Appears in 3 contracts
Samples: Indenture (South Plains Financial, Inc.), Indenture (Enterprise Bancorp Inc /Ma/), Indenture (Veritex Holdings, Inc.)
Exchange Offer. (a) Parent and the Company shall (and shall cause each other Guarantor to) (i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their commercially reasonable efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation Each of the Exchange Offer Noteholders agrees that, subject to any limitations in the Indenture, if this Agreement has not been terminated in accordance with its terms, it shall (i) within five (5) Business Days from the date it receives the written Solicitation materials complying with this Agreement, tender or cause to be tendered all of its Notes in the Exchange and will not withdraw any of such Notes from the Exchange prior to the earlier of (A) the expiration of the Exchange or (B) the termination of this Agreement in accordance with its terms, (ii) vote to amend the Indenture and adopt the Amendment pursuant to the Solicitation, (iii) refrain from, directly or indirectly, supporting or consenting to any competing exchange offer, consent solicitation or similar transaction in respect of the Notes other than the Exchange and Solicitation, and (iv) commence not instruct or cause the Exchange Offer Trustee to take any action that is inconsistent with the terms and use their commercially reasonable efforts conditions of this Agreement. The Company shall prepare the Solicitation, the Amendment and the other documents to issue on or prior be distributed to 30 days after holders of the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any law or applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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 connection with the Exchange Offerand any document required to be filed with the Securities and Exchange Commission (the “SEC”), including any registration statements required to be filed under the Securities Act of 1933, as amended, which documents shall be in form and no substance reasonably satisfactory to the Noteholders and, except as otherwise may be consented to in writing by each of the Noteholders, consistent in all material adverse development shall have occurred in any existing actionrespects with the Term Sheet and the terms of this Agreement. Each Noteholder shall, suit or proceeding with respect reasonable promptness upon request by the Company, furnish to the Company all information about itself and (iii) all governmental approvals shall have been obtained, which approvals its affiliates reasonably necessary or appropriate for inclusion in any documents prepared by the Company reasonably deems necessary in connection with the Solicitation or otherwise distributed to holders of the Notes in connection with the Exchange or required to be filed with the SEC in connection therewith, including any registration statements required to be filed under the Securities Act of 1933, as amended, and hereby covenants that any such information furnished in writing by such Noteholder to the Company for inclusion in such documents shall be true and accurate in all material respects as of the time such information is provided, and shall promptly notify the Company in writing if any such information subsequently becomes untrue or inaccurate in any material respect. Each Noteholder agrees, so long as this Agreement remains in effect, that the Solicitation materials may reference the existence of this Agreement and similar agreements with other holders of Notes, provided however that such Noteholder may not be named or otherwise identified without the prior written consent of such Noteholder unless required by law or by a judicial, administrative, legislative or regulatory body. The Company covenants and represents and warrants that no exchange and consent agreement, or other agreement concerning the transactions contemplated hereby, with any other holder of Notes shall be more beneficial to such holder than the terms and conditions of this Agreement are to the Noteholders. If this Agreement is terminated in accordance with its terms prior to the consummation of the Exchange Offer.
(b) The Exchange Notes Exchange, the Company shall be issued under, and entitled to the benefits of, (i) the Indenture or a trust indenture that is identical to the Indenture (other than such changes as are take all steps necessary to comply with any requirements permit the Noteholders to withdraw the tender of their Notes and revoke all consents given pursuant to this Agreement and the SEC to effect or maintain the qualifications thereof under the TIA) Solicitation and (ii) the Collateral Agreementsshall treat such tenders and consents as having not been given.
Appears in 3 contracts
Samples: Exchange and Consent Agreement, Exchange and Consent Agreement (Bode Concrete LLC), Exchange and Consent Agreement (Us Concrete Inc)
Exchange Offer. (a) Parent As promptly as reasonably practicable following the later of the Execution Date and the Company filing of NRGY’s Form 10-Q for the quarter ended March 31, 2012, Acquirer shall prepare an offer to exchange relating to the issuance of the Exchange Notes pursuant to the Exchange Offer (and shall cause each other Guarantor to) (i) prepare and file with the SEC promptly after the date hereofincluding any amendments or supplements thereto, but in no event later than the Filing Date, a registration statement (the “Exchange Registration StatementOffer to Exchange”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their commercially reasonable efforts to cause the Exchange Registration Statement to become effective as promptly as reasonably practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) thereafter commence the Exchange Offer and use their commercially reasonable efforts to issue on or prior to 30 days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer Acquirer shall not also take any action required to be subject to taken under any conditions, other than that (i) the Exchange Offer does not violate any law or applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit or proceeding shall have been instituted or threatened state securities Laws in any court or by any governmental agency which might materially impair the ability of the Company to proceed connection with the Exchange Offer, and no material adverse development NRGY shall have occurred furnish all information concerning NRGY and the holders of NRGY Notes as may be reasonably requested in connection with any such action; provided, however, that Acquirer shall not be required to qualify or register as a foreign entity or to take any action that would subject it to general service of process in any existing actionsuch jurisdiction where it is not presently qualified or registered or where it would be subject to taxation as a foreign entity. No amendment or supplement to the Offer to Exchange will be made by Acquirer without NRGY’s prior consent (which shall not be unreasonably withheld, suit delayed or proceeding conditioned) and without providing NRGY a reasonable opportunity to review and comment thereon. The Exchange Offer will comply in all material respects with all applicable requirements of the federal securities laws, and the Offer to Exchange will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. If at any time prior to the completion of the Exchange Offer any information relating to Acquirer or NRGY, or any of their respective Affiliates, officers or directors, is discovered by Acquirer or NRGY which should be set forth in an amendment or supplement to the Offer to Exchange, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Party that discovers such information shall promptly notify the other Parties and an appropriate amendment or supplement describing such information shall be promptly circulated to the holders of NRGY Notes.
(b) Acquirer shall use its commercially reasonable efforts to complete the Exchange Offer. Acquirer may not amend, supplement, modify or waive any terms and conditions of the Exchange Offer, or extend, terminate or withdraw the Exchange Offer, without NRGY’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed.
(c) Acquirer shall keep NRGY informed with respect to all material activity concerning the Company status of the Exchange Offer and, without limiting the generality of the foregoing, will promptly provide to NRGY all reports issued by the exchange agent for the Exchange Offer as to the principal amounts of NRGY Notes tendered pursuant to the Exchange Offer.
(d) NRGY shall cause the appropriate Representatives of the applicable members of the Propane Group Entities to execute and (iii) all governmental approvals shall have been obtained, which approvals the Company deliver any definitive documents or other certificates or documents as may be reasonably deems necessary requested by Acquirer for delivery at the consummation of the Exchange Offer.
(be) The Exchange Notes shall be issued underAcquirer shall, and entitled to the benefits ofshall cause its Affiliates to, (i) promptly upon request by the Indenture or a trust indenture that is identical Contributor Parties, reimburse the Contributor Parties for all reasonable and documented out-of-pocket costs (with no xxxx-up) incurred by the Contributor Parties in connection with the cooperation provided for in Section 5.14(d) (such reimbursement to the Indenture be made promptly and in any event within seven (other than 7) Business Days of delivery of reasonably acceptable documentation evidencing such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualifications thereof under the TIAexpenses) and (ii) indemnify and hold harmless the Collateral AgreementsContributor Parties and their respective Affiliates and Representatives from and against any and all Losses suffered or incurred by them in connection with the arrangement of the Exchange Offer arising out of any information utilized in connection therewith provided by Acquirer. All non-public or otherwise confidential information regarding the Propane Business obtained by Acquirer, its Affiliates or their respective Representatives pursuant to this Section 5.14 shall be kept confidential in accordance with Section 5.9, except that Acquirer shall be permitted to disclose such information to rating agencies to the extent necessary in connection with the Exchange Offer.
(f) Acquirer shall deliver, or cause to be delivered by the exchange agent for the Exchange Offer, to NRGY on or prior to the Settlement Date, the letters of transmittal and consent submitted by holders of the NRGY Notes pursuant to the Exchange Offer.
Appears in 3 contracts
Samples: Contribution Agreement (Suburban Propane Partners Lp), Contribution Agreement (Suburban Propane Partners Lp), Contribution Agreement (Inergy L P)
Exchange Offer. (a) Parent and To the Company extent not prohibited by any applicable law or applicable interpretations of the staff of the SEC, with respect to any Notes, if any, the Issuer shall (and shall cause each other Guarantor to) use its commercially reasonable efforts to (i) prepare cause to be filed and file with to become effective, on or prior to the SEC promptly after the date hereofEffectiveness Deadline, but in no event later than the Filing Date, a registration statement (the “an Exchange Offer Registration Statement”) on an appropriate form under the Securities Act with respect to Statement covering an offer (the “Exchange Offer”) to the Holders to exchange all the Transfer Restricted Notes of each Series of Notes to issue and deliver to such Holders, in exchange for the Notes, a like aggregate principal amount of Exchange NotesNotes of such Series, (ii) use their commercially reasonable efforts to cause the Exchange have such Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement remain effective until the consummation of the applicable Exchange Offer in accordance with its terms, and (iviii) with respect to each Series of Notes, commence the such Exchange Offer and use their commercially reasonable efforts to issue issue, on or prior to 30 days the 30th Business Day after the date on which the Exchange Registration Statement is declared effectiveEffectiveness Deadline, Exchange Notes of the applicable Series of Notes in exchange for all Transfer Restricted Notes of such Series of Notes validly tendered prior thereto in, and in accordance with the terms of, such Exchange Offer.
(b) The Issuer shall, for the benefit of the Holders, at the Issuer’s cost, commence each Exchange Offer, if any, by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder of the applicable Series of Notes stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Transfer Restricted Notes of the applicable Series of Notes validly tendered and not properly withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 Business Days from the date such notice is delivered) (the “Exchange Dates”);
(iii) that any Transfer Restricted Notes of the applicable Series of Notes not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Transfer Restricted Note of the applicable Series of Notes exchanged pursuant to the Exchange Offer will be required to (A) surrender such Transfer Restricted Note, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the Depositary, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Transfer Restricted Notes delivered for exchange and a statement that such Holder is withdrawing its election to have such Transfer Restricted Notes exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the Depositary.
(c) As a condition to participating in the Exchange Offer a Holder will be required to represent and warrant to the Issuer that (i) it is not an affiliate of the Issuer within the meaning of Rule 405 under the 1933 Act, or if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the 1933 Act to the extent applicable, (ii) any Exchange Notes to be received by such Holder will be acquired in the ordinary course of its business, (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 the Exchange Notes, (iv) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Transfer Restricted Notes acquired as a result of market-making or other trading activities, then such broker-dealer will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Notes, and (v) it has no arrangements or understandings with any Person to participate in the distribution (within the meaning of the Securities Act) of the Transfer Restricted Notes or the Exchange Notes in violation of the provisions of the Securities Act.
(d) With respect to each Series, the Exchange Notes of such Series, if any, 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 which shall provide that the Exchange Notes of such Series shall not be subject to the transfer restrictions set forth in the Indenture. The Exchange Notes of a Series and the Notes of the same Series shall vote and consent together on all matters as one class and none of the Exchange Notes or the Notes of such Series will have the right to vote or consent as a separate class on any matter.
(e) As soon as practicable after the last Exchange Date, the Issuer shall:
(i) accept for exchange all Transfer Restricted Notes of the applicable Series validly tendered and not validly withdrawn pursuant to the Exchange Offer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Transfer Restricted Notes of the applicable Series or portions thereof so accepted for exchange; and
(iii) with respect to each Series, issue and cause the Trustee promptly to authenticate and deliver Exchange Notes of the corresponding Series to each Holder of Transfer Restricted Notes of such Series so accepted for exchange Exchange Notes of the same Series in a principal amount equal to the principal amount of the Transfer Restricted Notes of such Series of such Holder so accepted for exchange.
(f) With respect to each Series, interest on each Exchange Note, including Additional Interest, will accrue (i) from the later of (A) the last date on which interest was paid on the Transfer Restricted Notes of such Series surrendered in exchange therefor or (B) if the Transfer Restricted Notes of such Series are surrendered for exchange on a date in a period which includes the record date for an interest payment date on such Series to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (ii) if no interest has been paid on the Transfer Restricted Notes of such Series, from the date of issuance.
(g) The Issuer shall use its commercially reasonable efforts to complete each Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with each Exchange Offer. The Each Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or applicable rule, regulation or interpretation interpretations of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company Exchange Offer and (iii) all governmental approvals shall have been obtained, which approvals obtained that the Company reasonably Issuer deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) and (ii) the Collateral Agreements.
Appears in 3 contracts
Samples: Registration Rights Agreement (Sands China Ltd.), Registration Rights Agreement (Sands China Ltd.), Registration Rights Agreement (Sands China Ltd.)
Exchange Offer. (a) Parent and the Company The Issuers shall (and shall cause each other Guarantor to) (i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement Registration Statement (the “Exchange Offer Registration Statement”) within 180 days after the Issue Date with the Commission on an appropriate registration form under the Securities Act with respect to an a registered offer (the “Exchange Offer”) to exchange any and all of the Holders of Registrable Notes to issue and deliver to such Holders, in exchange for the Notes, a like aggregate principal amount of notes (the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their all commercially reasonable efforts to cause the Exchange Offer Registration Statement to become be declared effective as promptly as practicable under the Securities Act on or prior to 210 days after the filing thereofIssue Date; provided that, but in no event later than the Effectiveness DateIssuers’ obligations to have the Exchange Offer Registration Statement declared effective shall be suspended until the date which is 60 days following the date upon which audited financial statements for the year ended December 31, 2005 first become available, to the extent that the Exchange Offer Registration Statement is prevented from being declared effective due to Parent’s (or the applicable Issuer’s) inability to produce five years of selected financial information as required by Item 301 of Commission Regulation S-K, and (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of unless the Exchange Offer in accordance with its termswould not be permitted by applicable law or Commission policy, and (iva) commence the Exchange Offer and (b) use their all commercially reasonable efforts to issue on or prior to 30 Business Days, or longer, if required by the federal securities laws, after the date on which the Exchange Offer Registration Statement was declared effective by the Commission, the Exchange Notes in exchange for surrender of all Notes validly tendered and not withdrawn prior thereto in the Exchange Offer. Each Holder that participates in the Exchange Offer will be required to represent to the Issuers in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate of the Issuers (within the meaning of 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, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes, (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any resale of such Exchange Notes and (vi) such Holder has full power and authority to transfer the Notes in exchange for the Exchange Notes and that MagnaChip and the Co-Issuer will acquire good and unencumbered title thereto free and clear of any liens, restrictions, charges or encumbrances and not subject to any adverse claims.
(b) The Issuers and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Issuers and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use all commercially reasonable efforts to keep the Exchange Offer Registration Statement continuously effective for a period not to exceed 180 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the last paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Issuer in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes in exchange for all Notes tendered prior thereto acquired in the Exchange Offer. The Issuers shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, the Initial Purchasers or any Holder, as the case may be, holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Issuers upon the request of the Initial Purchasers or any such Holder, as the case may be, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasers or any such Holder, as the case may be, in exchange (the “Private Exchange”) for such Notes held by the Initial Purchasers or any such Holder, as the case may be, a like principal amount of notes (the “Private Exchange Notes”) of the Issuers that are identical in all material respects to the Exchange Notes except that the Private Exchange Notes may be subject to restrictions on transfer and bear a legend to such effect. The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes (if permitted by the CUSIP Service Bureau). Interest on each Exchange Note and Private Exchange Note issued pursuant to the Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the Issue Date. Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuers shall have no further registration obligations other than the Issuers’ continuing registration obligations with respect to (i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which clause (c)(iii) of this Section 2 applies. In connection with the Exchange Offer, the Issuers shall:
(1) mail or cause to be mailed to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate thereof;
(3) 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
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn by the Holders pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each such Holder tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Registrable Notes of such Holder so accepted for exchange; provided that in the case of any Registrable Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Exchange Notes or Private Exchange Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SECCommission, (ii) no action, suit 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 Issuers to proceed with the Exchange OfferOffer or the Private Exchange, and no material adverse development shall have occurred in any existing action, suit action or proceeding with respect to the Company Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably Issuers deems necessary for the consummation of the Exchange Offer.
(b) Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under, and entitled to the benefits of, under (i) the Indenture or a trust (ii) an indenture that is identical in all material respects to the Indenture (other than in either case, with such changes as are necessary to comply with any requirements of the SEC Commission to effect or maintain the qualifications qualification thereof under the TIATIA or exemption from such qualification) and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Collateral AgreementsExchange Offer is not consummated within 20 days of the last day permitted by Section 2(a) hereof, (iii) prior to the 20th day following consummation of the Exchange Offer, any Holder, other than the Initial Purchasers, notifies the Issuers that it is prohibited by law or the applicable interpretations of the staff of the Commission from participating in the Exchange Offer or, that it may not resell the Exchange Notes received by it in the Exchange Offer without delivering a prospectus and the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales (other than due solely to the status of such Holder as an affiliate of the Issuers within the meaning of the Securities Act) or (iv) in the case of any Initial Purchaser that participates in the Exchange Offer or acquires Private Exchange Notes, such Initial Purchaser notifies the Issuers that it will not or did not receive freely tradeable Exchange Notes in the Exchange Offer in exchange for Notes or Private Exchange Notes that have the status of unsold allotments in an initial distribution (provided that the requirement that a Participating Broker-Dealer deliver a Prospectus in connection with sales of Exchange Notes acquired in the Exchange Offer in exchange for Notes acquired as a result of market-making activities or other trading activities shall not result in such Exchange Notes being not “freely tradeable”)(each such event referred to in clauses (i) through (iv) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (MagnaChip Semiconductor LTD (United Kingdom)), Registration Rights Agreement (MagnaChip Semiconductor LTD (United Kingdom))
Exchange Offer. (a) Parent and the Company The Co-Issuers shall (and shall cause each other Guarantor to) (i) prepare and file with within 90 days of the SEC promptly after the date hereof, but in no event later than the Filing Date, Issue Date a registration statement Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form under the Securities Act with respect to an a registered offer (the “Exchange Offer”) to exchange any and all of the Holders of Registrable Notes to issue and deliver to such Holders, in exchange for the Notes, a like aggregate principal amount of notes (the “Exchange Notes, ”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Additional Interest upon a Registration Default) and (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to become be declared effective under the Securities Act within 210 days after the Issue Date. To the extent not prohibited by any applicable law or applicable interpretation of the Commission, upon the Exchange Offer Registration Statement being declared effective by the Commission, the Co-Issuers will: (i) commence the Exchange Offer as promptly soon as practicable after the filing thereofExchange Offer Registration Statement is declared effective, but (ii) keep the Exchange Offer open for not less than 20 business days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders, and (iii) use all commercially reasonable efforts to issue within 30 business days, or longer, if required by the federal securities laws, after the date on which the Exchange Offer Registration Statement is declared effective Exchange Notes in exchange for Notes tendered prior thereto in the Exchange Offer and to otherwise consummate the Exchange Offer Each Holder that participates in the Exchange Offer will be required to represent to the Co-Issuers in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no event later than arrangement or understanding with any Person to participate in the Effectiveness Datedistribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iii) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes, (iv) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will comply with the applicable provisions of the Securities Act in connection with any resale of such Exchange Notes, (v) such Holder has full power and authority to transfer the Notes in exchange for the Exchange Notes and that the Co-Issuers will acquire good and unencumbered title thereto free and clear of any liens, restrictions, charges or encumbrances and not subject to any adverse claims; and (vi) such Holder is not an “affiliate” (as defined in Rule 405 promulgated under the Securities Act) of the Co-Issuers.
(b) The Co-Issuers and the Initial Purchaser acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Regulation S Notes). The Co-Issuers and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Co-Issuers agree to use their commercially reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective until for a period not to exceed 120 days after the date on which the Exchange Offer Registration Statement is declared effective, or such longer period if extended pursuant to the last paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Co-Issuers in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Co-Issuers shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, the Initial Purchaser or any Holder, as the case may be, holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the Exchange Offer, the Co-Issuers upon the request of the Initial Purchaser or any such Holder, as the case may be, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasers or any such Holder, as the case may be, in exchange (the “Private Exchange”) for such Notes held by the Initial Purchaser or any such Holder, as the case may be, a like principal amount of notes (the “Private Exchange Notes”) of the Co-Issuers that are identical in all material respects to the Exchange Notes except that the Private Exchange Notes may be subject to restrictions on transfer and bear a legend to such effect. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the corresponding Exchange Notes. For each Note surrendered in the Exchange Offer, the Holder will receive an Exchange Note having a principal amount equal to that of the surrendered Note. Interest on each Exchange Note and Private Exchange Note issued pursuant to the Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the Issue Date. Upon consummation of the Exchange Offer in accordance with its termsthis Section 2, the Co-Issuers shall have no further registration obligations other than the Co-Issuers’ continuing registration obligations with respect to (i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iviii) commence Notes or Exchange Notes as to which clause (c)(iii) of this Section 2 applies. In connection with the Exchange Offer, the Co-Issuers shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) 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
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and use their commercially reasonable efforts the Private Exchange, if any, the Co-Issuers shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn by the Holders pursuant to issue on or prior to 30 days after the date on which the Exchange Registration Statement is declared effectiveOffer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each such Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in exchange principal amount to the Registrable Notes of such Holder so accepted for all Notes tendered prior thereto in the Exchange Offerexchange. 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 any applicable law or any applicable rule, regulation or interpretation of the staff of the SECCommission, (ii) no action, suit 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 Co-Issuers to proceed with the Exchange OfferOffer or the Private Exchange, and no material adverse development shall have occurred in any existing action, suit action or proceeding with respect to the Company Co-Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems Co-Issuers deem necessary for the consummation of the Exchange Offer.
(b) Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under, and entitled to the benefits of, under (i) the Indenture or a trust (ii) an indenture that is identical in all material respects to the Indenture (other than in either case, with such changes as are necessary to comply with any requirements of the SEC Commission to effect or maintain the qualifications qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that:
(i) the Co-Issuers are not:
(A) required to file the Exchange Offer Registration Statement;
(B) permitted to consummate the Exchange Offer because the Exchange Offer is not permitted by applicable law or the applicable interpretations of the staff of the Commission;
(ii) for any reason the Collateral AgreementsExchange Offer is not consummated within 240 days of the Issue Date;
(iii) a Holder notifies the Company prior to the 20th Business Day following consummation of the Exchange Offer that:
(A) it is prohibited by law or Commission policy from participating in the Exchange Offer;
(B) it may not resell the exchange notes acquired by it in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales; or
(C) it is a broker-dealer and owns notes acquired directly from the Issuers or an affiliate of the Issuers; or
(iv) the Initial Purchaser so requests with respect to Regulation S Notes or corresponding Private Exchange Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution and such Holder so notifies the Company. (each such event referred to in clauses (i) through (iv) of this sentence, a “Shelf Filing Event”), then the Co-Issuers shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Forbes Energy Services LLC), Registration Rights Agreement (Forbes Energy Services Ltd.)
Exchange Offer. (a) Parent Unless the Exchange Offer would not be permitted by applicable laws or applicable interpretations of the staff of the SEC, the Partnership and the Company Parent shall (and shall cause each other Subsidiary Guarantor to) use its commercially reasonable efforts to (i) prepare and file with the SEC promptly after the date hereof, but in no event later than on or before the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their commercially reasonable efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than on or before the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their commercially reasonable efforts to issue on or prior to 30 days before the 30th Business Day after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes validly tendered prior thereto in the Exchange Offer. The Other than as set forth in this Agreement, including in Section 2(d) hereto, the Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any law or applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) of the Indenture or a trust indenture that is identical to the Indenture Indenture.
(other than c) Interest on the Exchange Notes and Private Exchange Notes will accrue from the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes.
(d) The Partnership may require each Holder as a condition to participation in the Exchange Offer to represent (i) that any Exchange Notes received by it will be acquired in the ordinary course of its business, (ii) that at the time of the commencement and consummation of the Exchange Offer such changes as are necessary Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that if such Holder is an “affiliate” of the Partnership within the meaning of Rule 405 of the Securities Act, it will comply with any the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Partnership and the Parent shall (and shall cause each Subsidiary Guarantor to) include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to effect the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or maintain other trading activity (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the qualifications staff of the SEC or such positions or policies that, in the judgment of the Initial Purchasers, represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Partnership and the Parent shall use its commercially reasonable efforts to keep the Exchange 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 (the “Applicable Period”).
(f) If, upon consummation of the Exchange Offer, the Initial Purchasers holds any Notes acquired by it and having the status of an unsold allotment in the initial distribution, the Partnership (upon the written request from the Initial Purchasers) shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for the Notes held by the Initial Purchasers, a like principal amount of Senior Notes that are identical to the Exchange Notes except for the existence of restrictions on transfer thereof under the TIASecurities Act and securities laws of the several states of the United States (the “Private Exchange Notes”) (and which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
(g) In connection with the Exchange Offer, the Partnership and the Parent shall (and shall cause each Subsidiary Guarantor to):
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Registration Statement, together with an appropriate letter of transmittal that is an exhibit to the Exchange 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) and until the Partnership has accepted all Notes validly tendered in accordance with the terms of the Exchange Offer;
(iii) utilize the services of a depository for the Exchange Offer with an address in the Borough of Manhattan, the City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all applicable laws.
(h) As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Partnership and the Parent shall (and shall cause each Subsidiary Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered pursuant to the Exchange Offer or the Private Exchange, as the case may be, and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange.
(i) The Exchange Notes and the Private Exchange Notes shall be issued under the Indenture, which will provide that the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture, that the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in any Note Guarantee (as such term is defined in the Indenture) on an equal and ratable basis.
(j) If: (i) the Partnership determines that applicable laws or applicable interpretations of the staff of the SEC would not permit the consummation of the Exchange Offer on or prior to the 30th Business Day following the Effectiveness Date; (ii) the Collateral AgreementsExchange Offer is not consummated on or prior to the 90th Business Day following the Effectiveness Date (provided that this shall not effect the obligations to pay Additional Interest after the 30th such Business Day pursuant to Section 4(a)(iii)(A)); or (iii) in the case of any Initial Purchaser representing that, on advice of counsel, it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer and such Initial Purchaser notifies the Partnership within six months of consummation of the Exchange Offer, then the Partnership and the Parent shall promptly (and in any event within five Business Days) deliver to the Holders (or in the case of an occurrence of any event described in clause (iii) of this Section 2(j), to any such Initial Purchaser) and the Trustee notice thereof (the “Shelf Notice”) and shall within the later of the Filing Date and 30 days of notification by a Holder file an Initial Shelf Registration pursuant to Section 3.
Appears in 2 contracts
Samples: Registration Rights Agreement (Tarantula Ventures LLC), Registration Rights Agreement (Dupont Fabros Technology, Inc.)
Exchange Offer. (a) Parent Unless the Exchange Offer would not be permitted by applicable laws or applicable interpretations of the staff of the SEC, the Issuers and the Company Guarantors shall (and shall cause each other Guarantor to) use their commercially reasonable efforts to (i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their commercially reasonable efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than on or before the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their commercially reasonable efforts to issue on or prior to 30 days before the 30th Business Day after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes validly tendered prior thereto in the Exchange Offer. The Other than as set forth in this Agreement, including in Section 2(d) hereto, the Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any law or applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) of the Indenture or a trust indenture that is identical to the Indenture Indenture.
(other than c) Interest on the Exchange Notes will accrue from the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes.
(d) The Issuers may require each Holder as a condition to participation in the Exchange Offer to represent (i) that any Exchange Notes received by it will be acquired in the ordinary course of its business, (ii) that at the time of the commencement and consummation of the Exchange Offer such changes as are necessary to comply Holder has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that it is not an “affiliate” of the Issuers (within the meaning of Rule 405 of the Securities Act, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Issuers and the Guarantors shall include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity (a “Participating Broker-Dealer”). Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the SEC Securities Act, including, to effect the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Issuers and the Guarantors shall use their commercially reasonable efforts to keep the Exchange Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to keep such Prospectus current during the period described in Section 4(a)(3) of the Securities Act and Rule 174 thereunder that is applicable to transactions by brokers or maintain dealers with respect to Notes or Exchange Notes (the qualifications “Applicable Period”).
(f) 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 Registration Statement, together with an appropriate letter of transmittal that is an exhibit to the Exchange 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) and until the Issuers have accepted all Notes validly tendered in accordance with the terms of the Exchange Offer;
(iii) utilize the services of a depository for the Exchange Offer with an address in the Borough of Manhattan, the City of New York, which may be the Trustee or an affiliate thereof;
(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 in all material respects with all applicable laws.
(g) 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 pursuant to the Exchange Offer and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Notes or Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange.
(h) The Exchange Notes shall be issued under the TIAIndenture, 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 and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in any Note Guarantee (as such term is defined in the Indenture) on an equal and ratable basis.
(i) If:
(1) the Issuers and the Guarantors determine that applicable laws or applicable interpretations of the staff of the SEC would not permit the consummation of the Exchange Offer on or prior to the 30th Business Day following the Effectiveness Date;
(2) the Exchange Offer is not consummated on or prior to the 90th Business Day following the Effectiveness Date (provided that this shall not affect the obligations of the Issuers to pay Additional Interest after the 30th such Business Day pursuant to Section 4(a)); or
(3) in the case of any Initial Purchaser representing that, on advice of counsel, it holds Registrable Notes that are or were ineligible to be exchanged in the Exchange Offer and such Initial Purchaser notifies the Issuers within six months of consummation of the Exchange Offer, then, the Issuers and the Guarantors shall use their commercially reasonable efforts to promptly deliver to the Holders (in the case of clauses (1) and (ii2) above), the Collateral Agreementsapplicable Initial Purchaser (in the case of clause (3) above) and the Trustee notice thereof (the “Shelf Notice”) and shall within 90 days of receipt of a written request from any such Holder or Initial Purchaser, use their commercially reasonable efforts to cause the Initial Shelf Registration described in Section 3 to be declared effective by the SEC.
Appears in 2 contracts
Samples: Registration Rights Agreement (CyrusOne Inc.), Registration Rights Agreement (Cincinnati Bell Inc)
Exchange Offer. (a) Parent and Unless the Company Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuer shall (and shall cause each other Guarantor to) (i) prepare and use its commercially reasonable efforts to file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form under the Securities Act with respect to an a registered offer (the “Exchange Offer”) to exchange any and all of the Holders Registrable Securities for a like aggregate principal amount of Notes debt securities of the Issuer (the “Exchange Notes”), guaranteed, to issue and deliver the extent applicable, on a senior unsecured basis by the Guarantors (the “New Guarantees” and, together with the Exchange Notes, the “Exchange Securities”) that are identical in all material respects to such Holders, in exchange for the Notes, a like principal amount of except that (i) the Exchange NotesNotes shall contain no restrictive legend thereon, (ii) interest thereon shall accrue (A) from the later of (a) the last date on which interest was paid on such Note or (b) if the Note is surrendered for exchange on a date in a period that includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B) if no such interest has been paid, from the Issue Date and (iii) the Exchange Securities shall be entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuer shall use their its commercially reasonable efforts to (x) prepare and file with the SEC the Exchange Offer Registration Statement with respect to the Exchange Offer; (y) keep the Exchange Offer open for at least 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) cause the Exchange Offer Registration Statement to become be declared effective under the Securities Act on or prior to July 25, 2014 (or if such day is not a Business Day, the next succeeding Business Day). Each Holder (including, without limitation, each Participating Broker-Dealer) that participates in the Exchange Offer, as promptly as practicable after a condition to participation in the filing thereofExchange Offer, but will be required to represent to the Issuer in no event later than writing (which may be contained in the Effectiveness Dateapplicable letter of transmittal) that: (i) any Exchange Securities acquired in exchange for Registrable Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Securities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Securities from such Holder has an arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the Securities Act; (iii) use neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Issuer or, if it is an affiliate of the Issuer, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their commercially reasonable efforts Securities included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to keep the actual knowledge of such Holder, any other Person receiving Exchange Securities from such Holder is engaging or intends to engage in a distribution of the Exchange Registration Statement effective until Securities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder). Upon consummation of the Exchange Offer in accordance with its termsthis Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Notes (and the related Guarantees), any Exchange Securities as to which Section 2(c)(iv) is applicable and Exchange Securities held by the Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (ivother than Private Exchange Notes (and the related Guarantees) commence and Exchange Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof.
(b) The Issuer shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Securities in compliance with the Securities Act. The Issuer shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Holders (including Participating Broker-Dealers) subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Securities; provided, however, that in no event shall the Issuer be required to keep the Exchange Offer Registration Statement effective and available for more than 180 days after consummation of the Exchange Offer, or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, immediately prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuer, upon the written request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Initial Purchaser, a like principal amount of notes (including the guarantees with respect thereto, the “Private Exchange Notes”) of the Issuer, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuer shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 20 Business Days from the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all laws, rules and regulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and use their commercially reasonable efforts any Private Exchange, the Issuer shall:
(1) accept for exchange all Registrable Securities validly tendered and not validly withdrawn pursuant to issue on or prior to 30 days after the date on which the Exchange Registration Statement is declared effectiveOffer and any Private Exchange;
(2) deliver to the Trustee for cancellation all Registrable Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in exchange principal amount to the Notes of such Holder so accepted for all Notes tendered prior thereto exchange; provided that, in the Exchange Offercase of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, ; (ii) no action, suit 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 Issuer to proceed with the Exchange OfferOffer or the Private Exchange, and no material adverse development shall have occurred in any existing action, suit action or proceeding with respect to the Company Issuer; and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably Issuer deems necessary for the consummation of the Exchange Offer.
(b) Offer or Private Exchange. The Exchange Securities and the Private Exchange Notes (and related guarantees) shall be issued under, and entitled to the benefits of, under (i) the Indenture or a trust (ii) an indenture that is identical in all material respects to the Indenture (other than and which, in either case, has been qualified under the TIA or is exempt from such changes 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 Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as are necessary to comply with any requirements one class and that none of the SEC Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuer is not permitted to effect or maintain the qualifications thereof under the TIA) and Exchange Offer, (ii) the Collateral AgreementsExchange Offer Registration Statement is not declared effective on or prior to July 25, 2014, (iii) any holder of Private Exchange Notes so requests in writing to the Issuer at any time within 30 days after the consummation of the Exchange Offer, or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Securities on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Issuer within the meaning of the Securities Act) and so notifies the Issuer in writing within 30 days after such Holder first becomes aware of such restrictions, then, in the case of each of clauses (i) through (iv) of this sentence, the Issuer shall promptly deliver to the Trustee with a copy to the registrar (to deliver to the Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (Laureate Education, Inc.), Exchange and Registration Rights Agreement (Laureate Education, Inc.)
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Guarantor to) (i) prepare and file with the SEC promptly after the date hereofSEC, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their its commercially reasonable efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their its commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their its commercially reasonable efforts to issue on or prior to 30 days 60 Business Days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) the Indenture or a trust indenture that is substantially identical to the Indenture (other than such changes as are necessary to comply with any requirements of applicable law or the SEC to effect or maintain the qualifications thereof under the TIA).
(c) Interest on the Exchange Notes will accrue from (i) the later of (x) the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or (y) if the Note is surrendered for exchange after the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (ii), if no interest has been paid on the Notes, from the Closing Date. Each Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to represent (i) that any Exchange Notes received by such Holder will be acquired in the ordinary course of its business, (ii) that at the time of the commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that if such Holder is an “affiliate” of the Company within the meaning of Rule 405 of the Securities Act, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer (as defined below), that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers, which shall contain all of the information that the SEC may require with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity and from whom the Company has received written notice that such broker-dealer will be a Participating Broker-Dealer in the applicable Exchange Offer (a “Participating Broker-Dealer”). Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its commercially reasonable efforts to keep the Exchange Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by Participating Broker-Dealers for such period of time as such Persons must comply with such requirements in order to resell the Exchange Notes; provided, that such period shall not exceed the lesser of 180 days and the date on which all Participating Broker Dealers have sold all Exchange Notes held by them (the “Applicable Period”).
(f) In connection with the Exchange Offer, the Company shall (and shall cause each Guarantor to):
(i) mail or cause to be mailed to each Holder of record a copy of the Prospectus forming part of the Exchange Registration Statement, together with an appropriate letter of transmittal (substantially in the form attached as an exhibit to the Exchange Offer Registration Statement) and any related documents;
(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 depository for the Exchange Offer with an address in the Borough of Manhattan, the City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York City time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all applicable laws.
(g) As soon as practicable after the close of the Exchange Offer the Company shall (and shall cause each Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered pursuant to the Exchange Offer and not validly withdrawn;
(ii) deliver or cause to be delivered to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder validly tendering such Registrable Notes, Exchange Notes equal in principal amount to the Notes of such Holder so accepted for exchange.
(h) The Exchange Notes may be issued under (i) the Indenture or (ii) an indenture substantially identical to the Indenture (other than such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualifications qualification thereof under the TIA), which in either event will provide that the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture).
(i) If: (i) prior to the consummation of the Exchange Offer, the Holders of a majority in aggregate principal amount of Registrable Notes determines in its or their reasonable judgment that (A) upon the advice of counsel that the Exchange Notes would not, upon receipt, be tradeable by the Holders thereof without restriction under the Securities Act and the Exchange Act and without material restrictions under applicable Blue Sky or state securities laws, or (B) the interests of the Holders under this Agreement, taken as a whole, would be materially adversely affected by the consummation of the Exchange Offer, and in the case of (A) or (B), notifies the Company in writing of such determination; (ii) any change in law or in applicable interpretations of the Collateral Agreementsstaff of the SEC would not permit the consummation of the Exchange Offer prior to the Effectiveness Date; (iii) subsequent to the consummation of the Exchange Offer, if any Initial Purchaser continues to hold any Notes for its own account, and such Initial Purchaser so requests; (iv) the Exchange Registration Statement is not declared effective on or prior to the Effectiveness Date for any reason; or (v) in the case of (A) any Holder not permitted by applicable law or SEC policy to participate in the Exchange Offer, (B) any Holder participating in the Exchange Offer that receives Exchange Notes that may not be sold without restriction under federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of Rule 405 of the Securities Act) or (C) any broker-dealer that holds Notes acquired by such broker-dealer directly from the Company or any of its affiliates and, in each such case contemplated by clause (iii) or this clause (v), such Holder notifies the Company in writing within 20 Business Days of the consummation of the Exchange Offer, then the Company shall promptly (and in any event within five Business Days of such notification) deliver to the Holders (or in the case of an occurrence of any event described in clause (v) of this Section 2(i), to any such Holder) and the Trustee notice thereof (the “Shelf Notice”) and shall as promptly as practicable thereafter file an Initial Shelf Registration pursuant to Section 3.
Appears in 2 contracts
Samples: Registration Rights Agreement (Acadia Healthcare Company, Inc.), Registration Rights Agreement (Acadia Healthcare Company, Inc.)
Exchange Offer. (a) Parent Unless the Exchange Offer would not be permitted by applicable laws or applicable interpretations of the staff of the SEC, the Issuers and the Company Guarantors shall (and shall cause each other Guarantor to) use their commercially reasonable efforts to (i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their commercially reasonable efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than on or before the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their commercially reasonable efforts to issue on or prior to 30 days before the 30th Business Day after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes validly tendered prior thereto in the Exchange Offer. The Other than as set forth in this Agreement, including in Section 2(d) hereto, the Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any law or applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) of the Indenture or a trust indenture that is identical to the Indenture Indenture.
(other than c) Interest on the Exchange Notes will accrue from the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes.
(d) The Issuers may require each Holder as a condition to participation in the Exchange Offer to represent (i) that any Exchange Notes received by it will be acquired in the ordinary course of its business, (ii) that at the time of the commencement and consummation of the Exchange Offer such changes as are necessary to comply Holder has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that it is not an “affiliate” of the Issuers (within the meaning of Rule 405 of the Securities Act, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Issuers and the Guarantors shall include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity (a “Participating Broker-Dealer”). Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the SEC Securities Act, including, to effect the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Issuers and the Guarantors shall use their commercially reasonable efforts to keep the Exchange Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to keep such Prospectus current during the period described in Section 4(a)(3) of the Securities Act and Rule 174 thereunder that is applicable to transactions by brokers or maintain dealers with respect to Notes or Exchange Notes (the qualifications “Applicable Period”).
(f) 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 Registration Statement, together with an appropriate letter of transmittal that is an exhibit to the Exchange 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) and until the Issuers have accepted all Notes validly tendered in accordance with the terms of the Exchange Offer;
(iii) utilize the services of a depository for the Exchange Offer with an address in the Borough of Manhattan, the City of New York, which may be the Trustee or an affiliate thereof;
(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 in all material respects with all applicable laws.
(g) 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 pursuant to the Exchange Offer and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Notes, Exchange Notes equal in principal amount to the Notes of such Holder so accepted for exchange.
(h) The Exchange Notes shall be issued under the TIAIndenture, 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 and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in any Note Guarantee (as such term is defined in the Indenture) on an equal and ratable basis.
(i) If:
(1) the Issuers and the Guarantors determine that applicable laws or applicable interpretations of the staff of the SEC would not permit the consummation of the Exchange Offer on or prior to the 30th Business Day following the Effectiveness Date;
(2) the Exchange Offer is not consummated on or prior to the 90th Business Day following the Effectiveness Date (provided that this shall not affect the obligations of the Issuers to pay Additional Interest after the 30th such Business Day pursuant to Section 4(a)); or
(3) in the case of any Initial Purchaser representing that, on advice of counsel, it holds Registrable Notes that are or were ineligible to be exchanged in the Exchange Offer and such Initial Purchaser notifies the Issuers within six months of consummation of the Exchange Offer, then, the Issuers and the Guarantors shall use their commercially reasonable efforts to promptly deliver to the Holders (in the case of clauses (1) and (ii2) above), the Collateral Agreementsapplicable Initial Purchaser (in the case of clause (3) above) and the Trustee notice thereof (the “Shelf Notice”) and shall within 90 days of receipt of a written request from any such Holder or Initial Purchaser, use their commercially reasonable efforts to cause the Initial Shelf Registration described in Section 3 to be declared effective by the SEC.
Appears in 2 contracts
Samples: Registration Rights Agreement (CyrusOne Inc.), Registration Rights Agreement (CyrusOne Inc.)
Exchange Offer. Upon the occurrence of an Exchange Offer in accordance with the Registration Rights Agreement, the Company will issue and, upon receipt of a Company Order in accordance with Section 2.05 hereof, the Trustee will authenticate (i) Unrestricted Definitive Subordinated Notes in an aggregate principal amount equal to the principal amount of the Restricted Definitive Subordinated Notes tendered in such Exchange Offer for acceptance by Persons that each certify in the applicable Letters of Transmittal that (a) Parent it is not an affiliate (as defined in Rule 405 under the Securities Act) of the Company, (b) any Exchange Notes to be received by it will be acquired in the ordinary course of business, (c) it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes, and (d) it is not acting on behalf of any Person who could not truthfully make the Company shall statements set forth in clauses (a), (b) and (c) immediately above, and shall cause each be required to make such other Guarantor to) (i) prepare and file with representations as may be reasonably necessary under applicable Commission rules, regulations or interpretations to render the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an use of Form S-4 or another appropriate form under the Securities Act with respect to an offer (available, or, if permitted by the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange NotesCompany, (ii) one or more Unrestricted Global Subordinated Notes in an aggregate principal amount equal to the principal amount of the beneficial interests in the Restricted Global Subordinated Notes tendered in such Exchange Offer for acceptance by Persons that each certify in the applicable Letters of Transmittal that (a) it is not an affiliate (as defined in Rule 405 under the Securities Act) of the Company, (b) any Exchange Notes to be received by it will be acquired in the ordinary course of business, (c) it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes, and (d) it is not acting on behalf of any Person who could not truthfully make the statements set forth in clauses (a), (b) and (c) immediately above, and shall be required to make such other representations as may be reasonably necessary under applicable Commission rules, regulations or interpretations to render the use their commercially reasonable efforts to of Form S-4 or another appropriate form under the Securities Act available. Concurrently with the issuance of such Unrestricted Global Subordinated Notes upon exchange of Restricted Global Subordinated Notes, the Trustee will cause the Exchange Registration Statement aggregate principal amount of the applicable Restricted Global Subordinated Notes to become effective as promptly as practicable be reduced accordingly, and the Company will execute and the Trustee will authenticate and deliver to the Persons designated by the Holders of Restricted Definitive Subordinated Notes so accepted Unrestricted Definitive Subordinated Notes in the applicable principal amount. Any Subordinated Notes that remain outstanding after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their commercially reasonable efforts to issue on or prior to 30 days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any law or applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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 such Exchange Offer, and no material adverse development shall have occurred Exchange Notes issued in any existing actionconnection with such Exchange Offer, suit or proceeding with respect to will be treated as a single class of securities under this Indenture. For the Company and (iiiavoidance of doubt, the only remedy for breach of registration rights is the Additional Interest set forth in Section 2(e) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange OfferRegistration Rights Agreement.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) and (ii) the Collateral Agreements.
Appears in 2 contracts
Samples: Indenture (Green Bancorp, Inc.), Indenture (Green Bancorp, Inc.)
Exchange Offer. (a) Parent and Unless the Exchange Offer (as defined below) would not be permitted by applicable laws or a policy or interpretation of the staff of the SEC, the Company shall (and shall cause each other Guarantor to) )
(i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Offer Registration Statement”) on an appropriate registration form under the Securities Act with respect to an offer (the “Exchange Offer”) to exchange the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their its commercially reasonable best efforts to cause the Exchange Offer Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their its commercially reasonable best efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their its commercially reasonable best efforts to issue on or prior to 30 50 days after the effective date on which of the Exchange Offer Registration Statement is declared effectiveStatement, Exchange Notes in exchange for all Notes validly tendered and not withdrawn prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than customary conditions and that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) which in either case will provide that (i) the Exchange Notes will not be subject to the transfer restrictions or additional interest provisions set forth in the Indenture and (ii) the Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in all the security granted by the Company pursuant to the Collateral AgreementsDocuments and in any Guarantee (as such terms are defined in the Indenture) on an equal and ratable basis.
(c) Interest on the Exchange Notes will accrue from (i) the later of (x) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or (y) if the Note is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (ii) if no interest has been paid on the Notes, from the Issue Date. Each Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to represent to the Company that at the time of the consummation of the Exchange Offer, (i) any Exchange Notes received by such Holder will be acquired in the ordinary course of its business, (ii) at the time of commencement of the Exchange Offer such Holder has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) such Holder is not an affiliate of the Company or if such Holder is an affiliate such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer (as defined below) that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution” which shall contain all of the information that the SEC requires with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making activities or other trading activities (a “Participating Broker-Dealer”). Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its commercially reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all Persons 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 (the “Applicable Period”).
(f) In connection with the Exchange Offer, the Company shall (and shall cause each Guarantor to):
(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 (substantially in the form attached as 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 (or longer if required by applicable law) after the date notice thereof is mailed to the Holders;
(iii) utilize the services of a depository for the Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate thereof;
(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 applicable laws.
(g) As soon as practicable after the close of the Exchange Offer, the Company shall (and shall cause each Guarantor to):
(i) accept for exchange all Notes validly tendered and not withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Notes or Exchange Notes, as the case may be, equal in principal amount at maturity to the Notes of such Holder so accepted for exchange.
(h) If, (i) because of any change in law or in applicable interpretations thereof by the staff of the SEC the Company is not permitted to effect an Exchange Offer, (ii) for any other reason the Exchange Offer Registration Statement is not declared effective on or prior to the Effectiveness Date, or the Exchange Offer is not consummated within 50 days after the effective date of the Exchange Offer Registration Statement, (iii) any Backstop Purchaser so requests with respect to the Notes not eligible to be exchanged for Exchange Notes in the Exchange Offer and held by it or any affiliate thereof following consummation of the Exchange Offer, or (iv) in the case of (A) any Holder not permitted to participate in the Exchange Offer, (B) any Backstop Purchaser or any affiliate thereof participating in the Exchange Offer that receives Registrable Notes or does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws or (C) any Participating Broker-Dealer holds Notes acquired directly from the Company or one of its affiliates, and such Holder or Participating Broker-Dealer notifies the Company of the same within six months of the Exchange Offer, then in each case the Company shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall as promptly as practicable and at its sole expense file an Initial Shelf Registration Statement pursuant to Section 3.
Appears in 2 contracts
Samples: Registration Rights Agreement (Aventine Renewable Energy Holdings Inc), Registration Rights Agreement (Nebraska Energy, L.L.C.)
Exchange Offer. (a) Parent If the Board of Directors of NHP has not approved the Merger Proposal prior to the first anniversary of the date of this Agreement (such first anniversary being the "COMMENCEMENT DATE"), then AIMCO shall commence, not later than the Commencement Date, an offer (the "EXCHANGE OFFER") to exchange shares of AIMCO Stock for any and all of the Company then outstanding shares of NHP Stock, with the number of shares of AIMCO Stock offered in exchange for each share of NHP Stock equal to $20 divided by $26.75; provided, however, that AIMCO shall (not be obligated to issue any fractional shares of AIMCO Stock pursuant to the Exchange Offer and, in lieu thereof, may make cash payments; provided, further, that AIMCO shall not be obligated to commence the Exchange Offer if any event or circumstance shall have occurred or arisen and be continuing that would result in the failure to satisfy any of the conditions set forth in SECTION 5.11(c). AIMCO's obligation under this SECTION 5.11(a) shall cause each other Guarantor to) (i) prepare include preparing and file filing with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (for the “Exchange Registration Statement”) on an appropriate form purpose of registering under the Securities Act with respect the shares of AIMCO Stock to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, be issued in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their commercially reasonable efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their commercially reasonable using its best efforts to issue on or prior to 30 days after seek the date on which effectiveness of such registration statement and maintain the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any law or applicable rule, regulation or interpretation effectiveness of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for such registration statement until the consummation of the Exchange Offer.
(b) The AIMCO shall conduct the Exchange Notes shall be issued underOffer in accordance with all applicable laws, including without limitation, Section 14 under the Exchange Act, and entitled the rules and regulations thereunder. AIMCO shall cause the information included, or incorporated by reference, in the documents (the "OFFER DOCUMENTS") pursuant to which the Exchange Offer is made (other than information with respect to NHP) not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading at the time the Offer Documents (or any amendment or supplement thereto) are first mailed to the benefits ofstockholders of NHP.
(c) Notwithstanding any other provisions of the Exchange Offer, AIMCO shall not be required to accept for exchange any shares of NHP Stock tendered pursuant to the Exchange Offer, may postpone the exchange of shares tendered, and may terminate or amend the Exchange Offer if at any time on or after the date hereof and at or before the time of acceptance for exchange of any such shares (whether or not any shares have theretofore been accepted for exchange) pursuant to the Exchange Offer, any of the following shall occur:
(i) any change, event, occurrence or circumstance shall have occurred, arisen or been threatened in the Indenture business, properties, assets, liabilities, capitalization, financial condition, operations, licenses or franchises, or results of operations of NHP, which change is or is reasonably likely to have a Material Adverse Effect on NHP, or a trust indenture material change shall have occurred in the equity capitalization of NHP that is identical would be adverse to AIMCO, or AIMCO shall have become aware of any facts relating to NHP or its operations which has or may have material significance with respect to the Indenture value of NHP;
(ii) there shall be instituted or pending any action, proceeding, application or counterclaim by any Governmental Authority, or by any Person before any Governmental Authority (other than such changes as are necessary pursuant to comply with any requirements Section 203 of the SEC DGCL), which (A) restrains, prohibits, materially delays or makes illegal the making or consummation of the Exchange Offer, (B) seeks to effect restrain, prohibit, materially delay or maintain make illegal the qualifications thereof under Exchange Offer, (C) imposes or seeks to impose any material limitation on the TIAability of AIMCO or any Affiliate of AIMCO to conduct NHP's business or own any assets of NHP, (D) and imposes or seeks to impose material limitations on the ability of AIMCO to acquire or hold or to exercise full rights of ownership of the shares of NHP Stock including, but not limited to, the right to vote the shares of NHP Stock purchased by it on all matters properly presented to the stockholders of NHP, or (E) might result in a limitation of the benefits expected to be derived by AIMCO as a result of the transactions contemplated by the Exchange Offer or the value of the shares of NHP Stock to AIMCO; provided, however, that AIMCO shall use its best efforts to contest any such action, proceeding, application or counterclaim, or to seek to have any such action, proceeding, application or counterclaim vacated or lifted;
(iii) there shall be any action taken, or any Law or Order shall be sought, proposed, enacted, promulgated, entered, enforced or deemed applicable to the Exchange Offer, AIMCO or any Affiliate of AIMCO, or any other action shall have been taken, proposed or threatened, by any Governmental Authority that might reasonably be expected to, directly or indirectly, result in any of the consequences referred to in clauses (A) through (E) of paragraph (ii) above (other than pursuant to Section 203 of the Collateral AgreementsDGCL);
(iv) a registration statement relating to the shares of AIMCO Stock issuable pursuant to the Exchange Offer shall not be effective under the Securities Act or there shall be pending or threatened a proceeding for the issuance of an order suspending the effectiveness of any such registration statement; or
(v) any of the conditions set forth in SECTION 6.1 shall not have been satisfied.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Apartment Investment & Management Co), Stock Purchase Agreement (Apartment Investment & Management Co)
Exchange Offer. (a) Parent The Issuers and the Company shall (and shall cause each other Guarantor to) Guarantors shall:
(i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the Securities Act with respect to an a proposed offer (the “"Exchange Offer”") to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like aggregate principal amount of Exchange Notes, Securities;
(ii) use their commercially respective reasonable best efforts to cause the Exchange Offer Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, ;
(iii) use their commercially respective reasonable best efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer in accordance with pursuant to its terms, and ; and
(iv) unless the Exchange Offer would not be permitted by a policy of the SEC, commence the Exchange Offer and use their commercially respective reasonable best efforts to issue to, on or prior to 30 days the earliest practicable date after the date on which the Exchange Offer Registration Statement is declared effective, but in no event later than 30 Business Days thereafter, consummate the Exchange Notes Offer and issue Exchange Securities in exchange for all Notes properly tendered and not withdrawn on or prior thereto in to the expiration of the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes Securities shall be issued under, and entitled to the benefits of, (i) 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 qualifications 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 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;
(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 properly 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 Security will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes, or as otherwise described in the Indenture. Each Exchange Security and each Private Exchange Security shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes surrendered in exchange therefor from time to time during such period.
(f) The Issuers and the Guarantors shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled "Plan of Distribution," containing a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Securities received by such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"). Such "Plan of Distribution" section shall also allow the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including (without limitation) all Participating Brokers-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Securities. The Issuers and the Guarantors shall use their respective reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective and to amend and supplement the Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirement of the Securities Act for the shorter of : (i) such period of time as such Persons must comply with such requirements in order to resell the Exchange Securities and (ii) the Collateral Agreementsperiod ending when all Registrable Securities covered by the Exchange Offer Registration Statement have been sold pursuant thereto (the "Applicable Period").
Appears in 2 contracts
Samples: Registration Rights Agreement (Majestic Star Casino LLC), Registration Rights Agreement (Majestic Star Casino LLC)
Exchange Offer. (a) Parent and Unless the Company Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Issuers shall (and shall cause each other Guarantor to) )
(i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their commercially reasonable best efforts to cause the Exchange Offer Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable best efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their commercially reasonable best efforts to issue on or prior to 30 days Business Days after the date on which the Exchange Offer Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC.
(b) Interest on each Exchange Note and Private Exchange Note will accrue (A) from the later of (i) the last interest payment date on which interest was paid on the Registrable Note surrendered in exchange therefor, or (ii) if the Registrable Note is surrendered for exchange after the record date for an interest payment date to occur on or after the date of such exchange, such interest payment date; or (B) if no interest has been paid on such Registrable Note, from the date of original issue of the Registrable Note. Each Exchange Note and Private Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(c) The Issuers may require each Holder as a condition to participation in the Exchange Offer to represent (i) that any Exchange Notes received by it will be acquired in the ordinary course of its business, (ii) no action, suit or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair that at the ability time of the Company commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to proceed participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that if such Holder is an “affiliate” of any of the Issuers within the meaning of Rule 405 of the Securities Act, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(d) The Issuers shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution” which shall contain a summary statement of the publicly disseminated positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity (a “Participating Broker-Dealer”). Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Issuers shall use their reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such Persons must comply with such requirements in order to resell the Exchange Notes (the “Applicable Period”).
(e) If, upon consummation of the Exchange Offer, any Initial Purchaser holds any Notes acquired by such Initial Purchaser and having the status of an unsold allotment in the initial distribution, the Issuers (upon the written request from such Initial Purchaser) shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to such Initial Purchaser, in exchange (the “Private Exchange”) for the Notes held by such Initial Purchaser, a like principal amount of senior secured notes that are identical to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (the “Private Exchange Notes”) (and which are issued pursuant to the same indenture as the Exchange Notes).
(f) In connection with the Exchange Offer, the Issuers shall (and no material adverse development shall have occurred in any existing actioncause each Guarantor to):
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, suit or proceeding together with respect an appropriate letter of transmittal that is an exhibit to the Company 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) all governmental approvals shall have been obtainedutilize the services of a depository for the Exchange Offer with an address in the Borough of Manhattan, the City of New York, which approvals may be the Company reasonably deems necessary for Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the consummation close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all federal and state securities laws applicable to the Exchange Offer.
(bg) As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Issuers shall (and shall cause each Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered pursuant to the Exchange Offer or the Private Exchange, as the case may be, and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange.
(h) The Exchange Notes and the Private Exchange Notes shall be issued under, under and entitled to the benefits of, of (i) the Indenture or a trust (ii) an 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 qualifications qualification thereof under the TIA), which in either event will provide that the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture, that the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in all the security granted by the Issuers pursuant to the Collateral Agreements and in any Guarantee (as such terms are defined in the Indenture) on an equal and ratable basis.
(i) If: (i) prior to the consummation of the Exchange Offer, the Holders of a majority in aggregate principal amount of Registrable Notes determine in their reasonable judgment that the Exchange Notes would not, upon receipt, be tradable by the Holders thereof without restriction under the Securities Act (it being understood that if any such determination is made the Issuers shall no longer be required to consummate the Exchange Offer), (ii) any change in law or applicable interpretations of the Collateral Agreementsstaff of the SEC would not permit the consummation of the Exchange Offer prior to the Effectiveness Date; (iii) subsequent to the consummation of the Private Exchange, any Holder of Private Exchange Notes so requests within six months of the consummation of the Exchange Offer; (iv) the Exchange Offer is not consummated within 30 Business Days from the date on which the Exchange Offer Registration Statement is declared effective; or (v) in the case of (A) any Holder not permitted by applicable law or SEC policy to participate in the Exchange Offer, (B) any Holder participating in the Exchange Offer that receives Exchange Notes that may not be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of any of the Issuers within the meaning of the Securities Act) or (C) any broker-dealer that holds Notes acquired directly from the Issuers or any of their respective affiliates and, in each such case contemplated by this clause (v), such Holder notifies the Issuers within six months of consummation of the Exchange Offer, then the Issuers shall promptly (and in any event within five Business Days) deliver to the Holders (or in the case of an occurrence of any event described in clause (v) of this Section 2(i), to any such Holder) and the Trustee notice thereof (the “Shelf Notice”) and shall as promptly as possible thereafter (but in no event later than the Shelf Filing Date) file an Initial Shelf Registration pursuant to Section 3.
Appears in 2 contracts
Samples: Registration Rights Agreement (TMX Finance LLC), Registration Rights Agreement (TitleMax of Virginia, Inc.)
Exchange Offer. (a) Parent and Unless the Company Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall (and shall cause each other Guarantor to) (i) prepare and use their commercially reasonable efforts to file with the SEC promptly after (within such time as to comply with the date hereof, but in no event later than requirements of the Filing Date, last sentence of this paragraph) a registration statement Registration Statement (the “Exchange Registration Statement”"EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate registration form under the Securities Act with respect to an a registered offer (the “Exchange Offer”"EXCHANGE OFFER") to exchange any and all of the Holders Registrable Notes for a like aggregate principal amount of Notes debt securities of the Company (the "EXCHANGE NOTES"), that are identical in all material respects to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of except that (i) the Exchange NotesNotes shall contain no restrictive legend thereon, (ii) subject to compliance herewith, the Exchange Notes shall not be subject to any increase in annual interest rate as set forth in Section 4(a) hereof and (iii) interest thereon shall accrue from the last date on which interest was paid on the Notes or, if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. Each Issuer shall (x) use their its commercially reasonable efforts to cause the Exchange Offer Registration Statement to become be declared effective as promptly as practicable under the Securities Act; (y) keep the Exchange Offer open for at least 20 Business Days (or longer if required by applicable law) after the filing date that notice of the Exchange Offer is mailed to Holders; and (z) use its commercially reasonable efforts to consummate the Exchange Offer on or prior to the 395th day following the closing date of the Acquisition (or if such 395th day is not a Business Day, the next succeeding Business Day). Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in the distribution of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an "affiliate" (as defined in Rule 405) of any Issuer or, if it is an affiliate of any Issuer, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have its Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; (v) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is prohibited by any law or policy of the SEC from participating in the Exchange Offer; and (vi) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, MUTATIS MUTANDIS, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers; PROVIDED, HOWEVER, that the Issuers shall have no further obligation to register Registrable Notes, or file any Registration Statement in respect thereof, but in no event later (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to this Agreement. No securities other than the Effectiveness DateExchange Notes shall be included in the Exchange Offer Registration Statement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled "Plan of Distribution," reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the "beneficial owner" (iiias defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a "PARTICIPATING BROKER-DEALER"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such "Plan of Distribution" section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. Each of the Issuers shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; PROVIDED, HOWEVER, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the "APPLICABLE PERIOD"). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Company, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the "PRIVATE EXCHANGE") for such Notes held by any such Holder, a like principal amount of notes (the "PRIVATE EXCHANGE NOTES") of the Company, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until Offer open for not less than 20 Business Days after the consummation date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in accordance the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with its termsall applicable laws, rules and (iv) commence regulations. As soon as practicable after the close of the Exchange Offer and use their commercially reasonable efforts the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to issue on or prior to 30 days after the date on which the Exchange Registration Statement is declared effectiveOffer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, a principal amount of Exchange Notes or Private Exchange Notes, as the case may be, equal in exchange principal amount to the Notes of such Holder so accepted for all Notes tendered prior thereto exchange; PROVIDED that, in the Exchange Offercase of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, ; (ii) no action, suit 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 Issuers to proceed with the Exchange OfferOffer or the Private Exchange, and no material adverse development shall have occurred in any existing action, suit action or proceeding with respect to the Company Company; and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems Issuers deem necessary for the consummation of the Exchange Offer.
(b) Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under, and entitled to the benefits of, under (i) the Indenture or a trust (ii) an indenture that is identical in all material respects to the Indenture (other than and which, in either case, has been qualified under the TIA or is exempt from such changes 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 are necessary to comply with any requirements one class and that none of the SEC Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Company determines upon advice of its outside counsel that it is not permitted to effect or maintain the qualifications thereof under the TIA) and Exchange Offer, (ii) the Collateral AgreementsExchange Offer is not consummated within 395 days of the closing date of the Acquisition, (iii) the Initial Purchasers or any other holder of Private Exchange Notes so requests in writing to the Issuers at any time after the consummation of the Exchange Offer or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under U.S. state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Issuers within the meaning of the Securities Act and other than any Participating Broker-Dealer by virtue of any prospectus delivery requirement) and so notifies the Company prior to the 20th Business Day following consummation of the Exchange Offer of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Company shall promptly deliver to the Holders and the Trustee written notice thereof (the "SHELF NOTICE") and the Issuers shall file a Shelf Registration pursuant to Section 3 hereof; PROVIDED, HOWEVER, that no Holder (other than an Initial Purchaser) shall be entitled to have the Notes held by it covered by such Shelf Registration unless such Holder agrees in writing to be bound by all of the provisions of this Agreement applicable to such Holder.
Appears in 2 contracts
Samples: Registration Rights Agreement (PanAmSat Holding CORP), Registration Rights Agreement (Intelsat LTD)
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Guarantor to) (i) use commercially reasonable efforts to no later than the Filing Date, prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to exchange the Holders of Notes for Exchange Notes guaranteed by the Guarantors which shall have terms substantially identical in all material respects to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their all commercially reasonable efforts to cause the Exchange Offer Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their all commercially reasonable efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their all commercially reasonable efforts to issue issue, on or prior to 3 30 days Business Days after the date on which that the Exchange Offer Registration Statement is declared effectiveeffective by the SEC (or such longer period if required by applicable securities laws), Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes and the Private Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA), which in either case will provide that (i) and the Exchange Notes will not be subject to the registration rights, transfer restrictions or Additional Interest provisions set forth in the Indenture, (ii) the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture and (iii) the Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in all the security granted by the Company pursuant to the Collateral AgreementsDocuments (to the extent provided therein) and in any Guarantee (as such terms are defined in the Indenture) on an equal and ratable basis.
(c) Interest on the Exchange Notes and Private Exchange Notes will accrue from (i) the later of (x) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or (y) if the Note is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (ii) if no interest has been paid on the Notes, from the Closing Date. Each Exchange Note and Private Exchange Note shall bear interest at the rate set forth thereon.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to represent to the Company that at the time of the commencement and consummation of the Exchange Offer, (i) any Exchange Notes received by such Holder will be acquired in the ordinary course of its business, (ii) such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) such Holder is not an “affiliate” (as defined in Rule 405 of the Securities Act) of the Company or if such Holder is an affiliate such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers which shall contain all of the information that the SEC may require with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making activities or other trading activities (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the judgment of the Initial Purchasers, represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use all commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such Persons must comply with such requirements in order to resell the Exchange Notes; provided that such period shall not exceed the lesser of 180 days and the date on which all persons subject to the prospectus delivery requirements of the Securities Act have sold all Exchange Notes held by them (the “Applicable Period”).
(f) If, upon consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them and having the status of an unsold allotment in the initial distribution, the Company (upon the written request from an 4 Initial Purchaser) shall, simultaneously with the delivery of the Exchange Notes pursuant to the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Notes held by such Initial Purchaser, a like principal amount of debt securities of the Company, including guarantees relating thereto (issued under the same Indenture as the Exchange Notes) that are identical in all material respects to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (the “Private Exchange Notes”). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
(g) In connection with the Exchange Offer, the Company shall (and shall cause each Guarantor to):
(i) mail or cause to be mailed to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal (substantially in the form attached as an exhibit to the Exchange Offer Registration Statement) and any related documents;
(ii) keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice thereof is mailed to the Holders;
(iii) utilize the services of a depository for the Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all applicable laws.
(h) Promptly after the close of the Exchange Offer or the Private Exchange, as the case may be, the Company shall (and shall cause each Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer or the Private Exchange, as the case may be;
(ii) deliver or cause to be delivered to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided, that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement.
(i) If (i) any change in law or in applicable interpretations thereof by the staff of the SEC would not permit the consummation of the Exchange Offer, (ii) the Exchange Offer is not consummated within 30 Business Days after the Effectiveness Date, (iii) the Initial Purchaser so requests with respect to the Notes (or the Private Exchange Notes) not eligible to be exchanged for Exchange Notes in the Exchange Offer and held by it following consummation of the Exchange Offer, or (iv) in the case of (A) any Holder prohibited by law or SEC policy from participating in the Exchange Offer, (B) any Holder that may not resell the Exchange Notes acquired by it in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of rule 405 of the Securities Act) or (C) any Participating Broker-Dealer holds Notes acquired directly from the Company or one of its affiliates, and in each case contemplated by clause (iii) or (iv) above, such Initial Purchaser or such Holder notifies the Company in writing thereof prior to 20 Business Days following consummation of the Exchange Offer, then in each case the Company shall promptly (and in any event within five Business Days of such notification) deliver to the Holders and the Trustee notice thereof (the “Shelf Notice”) and shall as promptly as practicable and at its sole expense file an Initial Shelf Registration Statement pursuant to Section 3 hereof. 5
Appears in 1 contract
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Guarantor to) use commercially reasonable efforts (i) to prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their commercially reasonable efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date; provided, however, that without the consent of the Initial Purchaser, the Exchange Offer shall not be consummated prior to the six-month anniversary of the Closing Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) to commence the Exchange Offer and use their commercially reasonable its best efforts to issue on or prior to 30 days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) and (ii) the Collateral Agreements.
(c) Interest on the Exchange Notes and Private Exchange Notes will accrue from the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes. Each Exchange Note and Private Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to represent (i) that any Exchange Notes received by it will be acquired in the ordinary course of its business, (ii) that at the time of the commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that if such Holder is an “affiliate” of the either of the Company within the meaning of Rule 405 of the Securities Act, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchaser which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the judgment of the Initial Purchaser, represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its best efforts to keep the Exchange 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 (the “Applicable Period”).
(f) If, upon consummation of the Exchange Offer, the Initial Purchaser holds any Notes acquired by it and having the status of an unsold allotment in the initial distribution, the Company (upon the written request from the Initial Purchaser) shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchaser, in exchange (the “Private Exchange”) for the Notes held by the Initial Purchaser, a like principal amount of Senior Secured Notes that are identical to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (the “Private Exchange Notes”) (and which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
(g) In connection with the Exchange Offer, the Company shall (and shall cause each Guarantor to):
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange 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 depository for the Exchange Offer with an address in the Borough of Manhattan, the City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all applicable laws.
(h) As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Company shall (and shall cause each Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered pursuant to the Exchange Offer or the Private Exchange, as the case may be, and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange.
(i) The Exchange Notes and the Private Exchange Notes may be issued under (i) the Indenture or (ii) an indenture 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), which in either event will provide that the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture, that the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in all the security granted by the Company pursuant to the Collateral Agreements and in any Subsidiary Guarantee (as such terms are defined in the Indenture) on an equal and ratable basis.
(j) If: (i) prior to the consummation of the Exchange Offer, the Holders of a majority in aggregate principal amount of Registrable Notes determines in its or their reasonable judgment that (A) the Exchange Notes would not, upon receipt, be tradeable by the Holders thereof without restriction under the Securities Act and the Exchange Act and without material restrictions under applicable Blue Sky or state securities laws, or (B) the interests of the Holders under this Agreement, taken as a whole, would be materially adversely affected by the consummation of the Exchange Offer; (ii) applicable interpretations of the staff of the SEC would not permit the consummation of the Exchange Offer prior to the Effectiveness Date; (iii) subsequent to the consummation of the Private Exchange, any Holder of Private Exchange Notes so requests; (iv) the Exchange Offer is not consummated within 360 days of the Closing Date for any reason; or (v) in the case of (A) any Holder not permitted by applicable law or SEC policy to participate in the Exchange Offer, (B) any Holder participating in the Exchange Offer that receives Exchange Notes that may not be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) or (C) any broker-dealer that holds Notes acquired directly from the Company or any of its affiliates and, in each such case contemplated by this clause (v), such Holder notifies the Company within six months of consummation of the Exchange Offer, then the Company shall promptly (and in any event within five Business Days) deliver to the Holders (or in the case of an occurrence of any event described in clause (v) of this Section 2(i), to any such Holder) and the Trustee notice thereof (the “Shelf Notice”) and shall as promptly as possible thereafter file an Initial Shelf Registration pursuant to Section 3.
Appears in 1 contract
Samples: Registration Rights Agreement (Interhealth Facility Transport, Inc.)
Exchange Offer. (a) Parent and the The Company shall (and shall cause each other Subsidiary Guarantor to) )
(i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “"Exchange Registration Statement”") on an appropriate form under the Securities Act with respect to an offer (the “"Exchange Offer”") to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their commercially its reasonable best efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) unless the Exchange Offer would not be permitted by a policy of the SEC, commence the Exchange Offer and use their commercially its reasonable best efforts to issue on or prior to 30 days 60 Business Days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) and (ii) the Collateral Agreements.
Appears in 1 contract
Samples: Registration Rights Agreement (Nationsrent Companies Inc)
Exchange Offer. (a) Parent and To the Company extent not prohibited by applicable law, the Issuers shall (and shall cause each other Guarantor to) use commercially reasonable efforts (i) prepare and to file with the SEC promptly after the date hereof, but in no event later than the Filing DateJune 30, 2010, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange NotesNotes (such date on which the Exchange Registration Statement is required to be filed, the “Exchange Offer Filing Deadline”), (ii) use their commercially reasonable efforts to cause the Exchange Registration Statement to become effective as promptly as practicable under the Securities Act no later than (a) 90 days after the filing thereofdate of the Exchange Offer Filing Deadline or (b) September 30, but in no event 2010, if such date is later than the end of such 90-day period (such date by which the Exchange Registration Statement must be declared effective, the “Exchange Offer Effectiveness Target Date”), (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, terms and (iv) commence cause the Exchange Offer and use their commercially reasonable efforts to issue on or prior to be completed within 30 days Business Days after the date on which the Exchange Registration Statement is declared effective, . The Issuers shall issue Exchange Notes in exchange for all Notes validly tendered prior thereto and not withdrawn in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) and (ii) the Collateral AgreementsSecurity Documents.
(c) Interest on each Exchange Note and Private Exchange Note will accrue (A) from the later of (i) the last interest payment date on which interest was paid on the Note surrendered in exchange therefor, or (ii) if the Note is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date; or (B) if no interest has been paid on such Note, from the Issue Date. Each Exchange Note and Private Exchange Note, if any, shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate borne by the Notes from time to time during such period.
(d) Each Holder, as a condition to participation in the Exchange Offer, shall be required to represent (i) that any Exchange Notes received by it will be acquired in the ordinary course of its business, (ii) that at the time of the commencement of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that either such Holder is not an Affiliate of any of the Issuers 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 to it, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus (or to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of the Exchange Notes.
(e) The Issuers shall include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchaser which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the judgment of the Initial Purchaser, represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Issuers shall use commercially reasonable efforts to keep the Exchange 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 (the “Applicable Period”).
(f) If, upon consummation of the Exchange Offer, the Initial Purchaser holds any Notes acquired by it and having the status of an unsold allotment in the initial distribution, the Issuers (upon the written request from the Initial Purchaser) shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchaser, in exchange (the “Private Exchange”) for the Notes, as the case may be, held by the Initial Purchaser, a like principal amount of senior secured first lien notes that are substantially identical in all material respects to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (such notes being referred to as the “Private Exchange Notes”) (and which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
(g) In connection with the Exchange Offer, the Issuers shall use commercially reasonably efforts to (and shall use commercially reasonable efforts to cause each Guarantor to):
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Registration Statement, together with an appropriate letter of transmittal that is an exhibit to the Exchange 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 depository for the Exchange Offer with an address in the Borough of Manhattan, in the City of New York, which depository may be the Trustee or an Affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York City time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all applicable laws.
(h) Promptly after the close of the Exchange Offer or the Private Exchange, as the case may be, the Issuers shall:
(i) accept for exchange all Registrable Notes validly tendered pursuant to the Exchange Offer or the Private Exchange, as the case may be, and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange.
(i) The Exchange Notes and the Private Exchange Notes may be issued under (i) the Indenture or (ii) an indenture substantially identical in all material respects 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), which in either event will provide that the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture, that the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in all the security granted by the Issuers pursuant to the Security Documents and in any Guarantee on an equal and ratable basis.
(j) If: (i) the Issuers and the Guarantors are not permitted to consummate the Exchange Offer because the Exchange Offer is not permitted by applicable law or SEC policy, or (ii) within 20 days following the consummation of the Exchange Offer, any Holder of Registrable Notes notifies the Issuers that (a) it is prohibited by applicable law or SEC policy from participating in the Exchange Offer; (b) it may not resell the Exchange Notes acquired by it in the Exchange Offer to the public without delivering a prospectus (other than by reason of such Holder’s status as an Affiliate of any of the Issuers) and the Prospectus contained in the Exchange Registration Statement is not appropriate or available for such resales or (c) it is a broker-dealer and owns Notes acquired directly from the Issuers or an Affiliate of any of the Issuers, the Issuers shall file an Initial Shelf Registration pursuant to Section 3 hereof, provided, that in no event shall the Issuers and the Guarantors have any obligation to file such Initial Shelf Registration prior to the Shelf Registration Filing Deadline.
Appears in 1 contract
Samples: Registration Rights Agreement (Global Aviation Holdings Inc.)
Exchange Offer. As promptly as practicable following the Restructuring Closing Date (aas defined in the Credit Agreement), but not later than June 30, 2013 (or such later date as approved by the Administrative Agent (as defined in the Credit Agreement) Parent and in its sole discretion), to the extent required by applicable Law (such determination to be made in good faith consultation with the Investors), the Company shall (and shall cause each other Guarantor to) (i) prepare and file with the SEC promptly after the date hereof, but Exchange Documents (as defined in no event later than the Filing Date, a registration statement (Credit Agreement). The Exchange Offer shall be on terms mutually agreed between the “Company and the Investors and the Company shall cause the Exchange Registration Statement”) on an appropriate form under the Securities Act Offer to comply with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) applicable Law. The Company will use their commercially reasonable best efforts to cause the Exchange Registration Statement Documents to become effective be mailed to the Other Noteholders as promptly as reasonably practicable after confirmation from the SEC that it has no further comments on the Exchange Documents (or that the Exchange Documents are otherwise not to be reviewed by the SEC), or, if no filing thereofof the Exchange Documents with the SEC is required by applicable Law, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep date set forth in the first sentence of this Section 3.02(b). The Company will cause the information included in the Exchange Registration Statement effective until Documents, at the consummation time of the mailing or filing with the SEC of the Exchange Offer Documents or any amendments or supplements thereto, not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in accordance with order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company shall promptly (A) notify the Investors upon the receipt of any comments or requests for information of the SEC and its terms, staff and (ivB) commence provide the Exchange Offer and use their commercially reasonable efforts to issue on or prior to 30 days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for Investors with copies of all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any law or applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to correspondence between the Company and (iii) all governmental approvals shall have been obtainedits Representatives, which approvals on the Company reasonably deems necessary for one hand, and the consummation SEC and its staff, on the other hand, to the extent such correspondence relates to the Exchange Documents. Prior to responding to any such comments or requests or the filing or mailing of the Exchange Offer.
Documents, the Company (bx) The Exchange Notes shall be issued under, provide the Investors with a reasonable opportunity to review and entitled to the benefits of, (i) the Indenture or a trust indenture that is identical to the Indenture (other than such changes as are necessary to comply with comment on any requirements drafts of the SEC to effect or maintain the qualifications thereof under the TIA) Exchange Documents and related correspondence and filings and (iiy) shall include in such drafts, correspondence and filings all comments reasonably proposed by the Collateral AgreementsInvestors.
Appears in 1 contract
Exchange Offer. (a) Parent and the Company The Issuers shall (and shall cause each other Guarantor to) (i) prepare and use their reasonable best efforts to file with the SEC promptly after the date hereofSEC, but in no event later than the Filing Date, a registration statement Registration Statement (the “"Exchange Offer Registration Statement”") on an appropriate registration form with respect to a registered offer (the "Exchange Offer") to exchange any and all of the Securities for a like aggregate principal amount of notes of the Company Issuers (the "Exchange Notes"), guaranteed by the Guarantor, that are identical in all material respects to the Securities and shall have terms (including a Guarantee) substantially identical to the terms of the Securities, (except that the Exchange Notes shall not contain terms with respect to transfer restrictions and shall contain no restrictive legend thereon and which shall be entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable law. The Issuers shall use their reasonable best efforts to (x) cause the Exchange Offer Registration Statement to be declared effective under the Securities Act with respect on or before the Effectiveness Date applicable thereto; (y) keep the Exchange Offer open for not less than 20 business days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to an offer Holders; and (z) consummate the “Exchange Offer”) Offer on or prior to the Holders later of the 290th day following the Issue Date. If, after the Exchange Offer Registration Statement is initially declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Notes thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, the Exchange Offer Registration Statement shall be deemed not to have become effective for purposes of this Agreement.
(i) that any Exchange Notes to issue be received by it will be acquired in the ordinary course of its business, (ii) that at the time of the consummation of the Exchange Offer such Holder will have no arrangement or understanding with any Person to participate in the distribution of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that such Holder is not an affiliate of any of the Issuers within the meaning of the Securities Act, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and deliver does not intend to such Holdersengage in, in exchange for the Notes, a like principal amount distribution of Exchange Notes, and (iiv) use their commercially reasonable efforts to cause the if such Holder is a broker-dealer that will receive Exchange Registration Statement to become effective Notes for its own account in exchange for Notes that were acquired as promptly as practicable after the filing thereofa result of market-making or other trading activities, but that it will deliver a prospectus in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the connection with any resale of such Exchange Registration Statement effective until the Notes. Upon consummation of the Exchange Offer in accordance with its termsthis Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers (as defined), and the Issuers shall have no further obligation to register Registrable Notes (ivother than Private Exchange Notes and other than in respect of any Exchange Notes as to which Section 2(c)(iv) commence is applicable) pursuant to Section 3 hereof. No securities other than the Exchange Notes (and the related Guarantees) shall be included in the Exchange Offer Registration Statement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled "Plan of Distribution," reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the Staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"), whether such positions or policies have been publicly disseminated by the Staff of the SEC or such positions or policies represent the prevailing views of the Staff of the SEC. Such "Plan of Distribution" section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use their reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes covered thereby (the "Applicable Period"). If, prior to consummation of the Exchange Offer, any Holder holds any Securities acquired by it that have the status of an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the Exchange Offer, the Company Issuers upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes (and the related Guarantees) in the Exchange Offer, issue and deliver to any such Holder, in exchange (the "Private Exchange") for such Securities held by any such Holder, a like principal amount of notes, (the "Private Exchange Notes") of the Company Issuers, guaranteed by the Guarantor, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the applicable Exchange Notes. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use their reasonable best efforts to keep the Exchange Offer open for not less than 20 business days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, the City of New York;
(4) permit Holders to withdraw tendered Securities 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
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and use their commercially reasonable efforts the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Securities validly tendered and not validly withdrawn pursuant to issue on or prior to 30 days after the date on which the Exchange Registration Statement is declared effectiveOffer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Securities, Exchange Notes or Private Exchange Notes, as the case may be (and, in exchange each case, the related Guarantees), equal in principal amount to the Securities of such Holder so accepted for all Notes tendered prior thereto in the Exchange Offerexchange. 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 any applicable law or any applicable rule, regulation or interpretation of the staff Staff of the SEC, (ii) no action, suit 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 Issuers to proceed with the Exchange OfferOffer or the Private Exchange, and no material adverse development shall have occurred in any existing action, suit action or proceeding with respect to the Company Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems Issuers deem necessary for the consummation of the Exchange Offer.
(b) Offer or Private Exchange. The Exchange Notes (and the related Guarantees) and the Private Exchange Notes (and the related Guarantees) shall be issued under, and entitled to the benefits of, under (i) the Indenture or a trust (ii) an indenture that is identical in all material respects to the Indenture (other than and which, in either case, has been qualified under the TIA or is exempt from such changes 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 Securities shall vote and consent together on all matters as are necessary to comply with any requirements one class and that none of the SEC Exchange Notes, the Private Exchange Notes or the Securities will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the Staff of the SEC, the Issuers are not permitted to effect or maintain the qualifications thereof under the TIA) and Exchange Offer, (ii) the Collateral AgreementsExchange Offer is not consummated on or prior to the 290th day following the Issue Date, (iii) any holder of Private Exchange Notes so requests in writing to the Issuers within 10 days after the consummation of the Exchange Offer, or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of any of the respective Issuers within the meaning of the Securities Act), then in the case of each of clauses (i) to and including (iv) of this sentence, the Company Issuers shall promptly deliver to the Holders specified in clauses (iii) and (iv) above and the Trustee written notice thereof (the "Shelf Notice") and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Graham Packaging Holdings Co)
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Guarantor to) )
(i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their all commercially reasonable efforts to cause the Exchange Registration Statement to become be declared effective as promptly as practicable after by the filing thereof, but in no event later than SEC on or prior to the Effectiveness Date, (iii) use their all commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their all commercially reasonable efforts to issue on or prior to 30 days Business Days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA).
(c) Interest on the Exchange Notes and Private Exchange Notes will accrue from the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from and including October 15, 2012. Each Exchange Note and Private Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to represent (i) that any Exchange Notes received by it will be acquired in the ordinary course of its business, (ii) that at the Collateral Agreementstime of the commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that if such Holder is an “affiliate” of the Company within the meaning of Rule 405 of the Securities Act, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the judgment of the Initial Purchasers, represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use all commercially reasonable efforts to keep the Exchange 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 (the “Applicable Period”).
(f) If, upon consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them and having the status of an unsold allotment in the initial distribution, the Company (upon the written request from the Initial Purchasers) shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for the Notes held by the Initial Purchasers, a like principal amount of Notes that are identical to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (the “Private Exchange Notes”) (and which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes shall bear the same CUSIP and ISIN numbers as the Exchange Notes.
(g) In connection with the Exchange Offer, the Company shall (and shall cause each Guarantor to):
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange 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 depository for the Exchange Offer with an address in the Borough of Manhattan, the City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York City time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all applicable laws.
(h) As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Company shall (and shall cause each Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered pursuant to the Exchange Offer or the Private Exchange, as the case may be, and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange.
(i) The Exchange Notes and the Private Exchange Notes may be issued under (i) the Indenture or (ii) an indenture 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), which in either event will provide that the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture, that the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture).
(j) If: (i) the Company and the Guarantors are not required to file an Exchange Registration Statement; (ii) applicable interpretations of the staff of the SEC would not permit the consummation of the Exchange Offer prior to the Effectiveness Date; or (iii) in the case of (A) any Holder not permitted by applicable law or SEC policy to participate in the Exchange Offer, (B) any Holder participating in the Exchange Offer that receives Exchange Notes that may not be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) or (C) any broker-dealer that holds Notes acquired directly from the Company or any of its affiliates and, in each such case contemplated by this clause (iii), such Holder notifies the Company prior to the 20th Business Day following consummation of the Exchange Offer, then the Company shall promptly (and in any event within five Business Days) deliver to the Holders (or in the case of an occurrence of any event described in clause (iii) of this Section 3(j) hereof, to any such Holder) and the Trustee notice thereof (the “Shelf Notice”) and shall file an Initial Shelf Registration pursuant to Section 4 hereof.
Appears in 1 contract
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Guarantor to) )
(i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “"Exchange Registration Statement”") on an appropriate form under the Securities Act with respect to an offer (the “"Exchange Offer”") to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount at maturity of Exchange Notes, (ii) use their commercially reasonable its best efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable its best efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their commercially its reasonable best efforts to issue on or prior to 30 days Business Days after the date on which the Exchange Registration Statement is declared effectiveEffectiveness Date, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes and the Private Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) and which in either case will provide that (i) the Exchange Notes will not be subject to the transfer restrictions or additional interest provisions set forth in the Indenture, (ii) the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture and (iii) the Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in all the security granted by the Company pursuant to the Collateral AgreementsAgreements and in any Guarantee (as such terms are defined in the Indenture) on an equal and ratable basis.
(c) Interest on the Exchange Notes and Private Exchange Notes will accrue from (i) the later of (x) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefore or (y) if the Note is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (ii) if no interest has been paid on the Notes, from the date of original issue of the Notes. Each Exchange Note and Private Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to represent to the Company that at the time of the consummation of the Exchange Offer, (i) any Exchange Notes received by such Holder will be acquired in the ordinary course of its business, (ii) such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) such Holder is not an "affiliate" (as defined in Rule 405 of the Securities Act) of the Company or if such Holder is an affiliate such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Registration Statement a section entitled "Plan of Distribution" reasonably acceptable to the Initial Purchasers which shall contain all of the information that the SEC may require with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making activities or other trading activities (a "Participating Broker-Dealer"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the judgment of the Initial Purchasers, represent the prevailing views of the staff of the SEC. Such "Plan of Distribution" section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its reasonable best efforts to keep the Exchange 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 (the "Applicable Period").
(f) If, upon consummation of the Exchange Offer, an Initial Purchaser holds any Notes acquired by it and having the status of an unsold allotment in the initial distribution, the Company (upon the written request from the Initial Purchasers) shall, simultaneously with the delivery of the Exchange Notes pursuant to the Exchange Offer, issue and deliver to the Initial Purchaser in exchange (the "Private Exchange") for the Notes held by such Initial Purchaser, a like principal amount at maturity of Senior Second Secured Notes (issued under the same Indenture as the Exchange Notes) that are identical in all material respects to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (the "Private Exchange Notes"). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
(g) In connection with the Exchange Offer, the Company shall (and shall cause each Guarantor to):
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Registration Statement, together with an appropriate letter of transmittal (substantially in the form attached as an exhibit to the Exchange Registration Statement) and any related documents;
(ii) keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice thereof is mailed to the Holders;
(iii) utilize the services of a depository for the Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply with all applicable laws.
(h) As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Company shall (and shall cause each Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered and not withdrawn pursuant to the Exchange Offer or the Private Exchange, as the case may be;
(ii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount at maturity to the Notes of such Holder so accepted for exchange.
(i) If, (i) any change in law or in applicable interpretations thereof by the staff of the SEC would not permit the consummation of the Exchange Offer, (ii) the Exchange Offer is not consummated within 30 Business Days after the Effectiveness Date, (iii) the Initial Purchasers so request with respect to the Notes (or the Private Exchange Notes) not eligible to be exchanged for Exchange Notes in the Exchange Offer and held by it following consummation of the Exchange Offer, or (iv) in the case of (A) any Holder not permitted to participate in the Exchange Offer or (B) any Holder participating in the Exchange Offer that receives Exchange Notes that may not be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and, in either case contemplated by this clause (iv), such Holder notifies the Company within six months of consummation of the Exchange Offer, then in each case the Company shall promptly (and in any event within five Business Days of such notification) deliver to the Holders and the Trustee notice thereof (the "Shelf Notice") and shall as promptly as practicable and at its sole expense thereafter file an Initial Shelf Registration Statement pursuant to Section 3.
Appears in 1 contract
Samples: Registration Rights Agreement (Eschelon Telecom Inc)
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Guarantor to) )
(i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “"Exchange Registration Statement”") on an appropriate form under the Securities Act with respect to an offer (the “"Exchange Offer”") to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount at maturity of Exchange Notes, (ii) use their commercially reasonable its best efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable its best efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their commercially its reasonable best efforts to issue on or prior to 30 days Business Days after the date on which the Exchange Registration Statement is declared effectiveEffectiveness Date, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes and the Private Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) and which in either case will provide that (i) the Exchange Notes will not be subject to the transfer restrictions or additional interest provisions set forth in the Indenture, (ii) the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture and (iii) the Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in all the security granted by the Company pursuant to the Collateral AgreementsAgreements and in any Guarantee (as such terms are defined in the Indenture) on an equal and ratable basis.
(c) Interest on the Exchange Notes and Private Exchange Notes will accrue from (i) the later of (x) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefore or (y) if the Note is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (ii) if no interest has been paid on the Notes, from the date of original issue of the Notes. Each Exchange Note and Private Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to represent to the Company that at the time of the consummation of the Exchange Offer, (i) any Exchange Notes received by such Holder will be acquired in the ordinary course of its business, (ii) such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) such Holder is not an "affiliate" (as defined in Rule 405 of the Securities Act) of the Company or if such Holder is an affiliate such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Registration Statement a section entitled "Plan of Distribution" reasonably acceptable to the Initial Purchaser which shall contain all of the information that the SEC may require with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making activities or other trading activities (a "Participating Broker-Dealer"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the judgment of the Initial Purchaser, represent the prevailing views of the staff of the SEC. Such "Plan of Distribution" section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its reasonable best efforts to keep the Exchange 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 (the "Applicable Period").
(f) If, upon consummation of the Exchange Offer, an Initial Purchaser holds any Notes acquired by it and having the status of an unsold allotment in the initial distribution, the Company (upon the written request from the Initial Purchaser) shall, simultaneously with the delivery of the Exchange Notes pursuant to the Exchange Offer, issue and deliver to the Initial Purchaser in exchange (the "Private Exchange") for the Notes held by such Initial Purchaser, a like principal amount at maturity of Senior Second Secured Notes (issued under the same Indenture as the Exchange Notes) that are identical in all material respects to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (the "Private Exchange Notes"). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
(g) In connection with the Exchange Offer, the Company shall (and shall cause each Guarantor to):
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Registration Statement, together with an appropriate letter of transmittal (substantially in the form attached as an exhibit to the Exchange Registration Statement) and any related documents;
(ii) keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice thereof is mailed to the Holders;
(iii) utilize the services of a depository for the Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply with all applicable laws.
(h) As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Company shall (and shall cause each Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered and not withdrawn pursuant to the Exchange Offer or the Private Exchange, as the case may be;
(ii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount at maturity to the Notes of such Holder so accepted for exchange.
(i) If, (i) any change in law or in applicable interpretations thereof by the staff of the SEC would not permit the consummation of the Exchange Offer, (ii) the Exchange Offer is not consummated within 30 Business Days after the Effectiveness Date, (iii) the Initial Purchaser so request with respect to the Notes (or the Private Exchange Notes) not eligible to be exchanged for Exchange Notes in the Exchange Offer and held by it following consummation of the Exchange Offer, or (iv) in the case of (A) any Holder not permitted to participate in the Exchange Offer or (B) any Holder participating in the Exchange Offer that receives Exchange Notes that may not be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and, in either case contemplated by this clause (iv), such Holder notifies the Company within six months of consummation of the Exchange Offer, then in each case the Company shall promptly (and in any event within five Business Days of such notification) deliver to the Holders and the Trustee notice thereof (the "Shelf Notice") and shall as promptly as practicable and at its sole expense thereafter file an Initial Shelf Registration Statement pursuant to Section 3.
Appears in 1 contract
Samples: Registration Rights Agreement (Eschelon Telecom of California, Inc.)
Exchange Offer. (a) Parent and Unless the Exchange Offer shall not be permissible under applicable law or Commission policy, the Company shall (and to the extent of the guarantees, the Guarantor) shall cause each other Guarantor to) (i) prepare and file cause to be filed with the SEC promptly Commission, on or prior to 45 days after the date hereof, but in no event later than the Filing Closing Date, a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form Statement under the Securities Act with respect relating to an offer (the “Series B Notes and the Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their commercially reasonable its best efforts to cause the such Exchange Offer Registration Statement to become be declared effective as promptly as practicable by the Commission on or prior to 135 days after the filing thereof, but in no event later than the Effectiveness Closing Date, (iii) use their commercially reasonable efforts in connection with the foregoing, file (A) all pre-effective amendments to keep the such Exchange Offer Registration Statement effective until as may be necessary in order to cause such Exchange Offer Registration Statement to become effective, (B) cause all necessary filings in connection with the consummation registration and qualification of the Series B Notes to be made under the Blue Sky laws of such jurisdictions as are necessary to permit Consummation of the Exchange Offer in accordance with its termsOffer, and (iv) commence upon the effectiveness of such Exchange Offer and use their commercially reasonable efforts to issue on or prior to 30 days after the date on which the Exchange Registration Statement is declared effectiveStatement, Exchange Notes in exchange for all Notes tendered prior thereto in commence the Exchange Offer. The Exchange Offer shall not be subject on an appropriate form permitting registration of the Series B Notes to any conditionsbe offered in exchange for the Transfer Restricted Securities and to permit resales of Securities held by Broker-Dealers as contemplated by Section 3(c) below, other than that (i) if permissible under applicable law or Commission policy. If, after such Exchange Offer Registration Statement initially is declared effective by the Commission, the Exchange Offer does not violate or the issuance of Series B Notes thereunder or the sale of Transfer Restricted Securities pursuant thereto as contemplated by Section 3(c) below is interfered with by any law stop order, injunction or applicable rule, regulation other order or interpretation requirement of the staff of the SEC, (ii) no action, suit Commission or proceeding shall have been instituted or threatened in any court or by any other governmental agency which might materially impair the ability of the Company to proceed with the or court, such Exchange Offer, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes Offer Registration Statement shall be issued underdeemed not to have become effective for purposes of this Agreement during the period that such stop order, and entitled to the benefits of, (i) the Indenture injunction 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 similar order or maintain the qualifications thereof under the TIA) and (ii) the Collateral Agreementsrequirement shall remain in effect.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Highwaymaster Corp)
Exchange Offer. Upon the occurrence of an Exchange Offer in accordance with the Registration Rights Agreement, the Company will issue and, upon receipt of a Company Order in accordance with Section 2.05 hereof, the Trustee will authenticate (i) Unrestricted Definitive Subordinated Notes in an aggregate principal amount equal to the principal amount of the Restricted Definitive Subordinated Notes tendered in such Exchange Offer for acceptance by each Person that certifies in the applicable Letter of Transmittal that (a) Parent it is not an affiliate (as defined in Rule 405 under the Securities Act) of the Company, (b) any Exchange Notes to be received by it will be acquired in the ordinary course of business, (c) it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes, and (d) it is not acting on behalf of any Person who could not truthfully make the Company shall statements set forth in clauses (a), (b), and shall cause each (c) immediately above, and makes such other Guarantor to) (i) prepare and file with representations as may be reasonably necessary under applicable Commission rules, regulations, or interpretations to render the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an use of Form S-4 or another appropriate form under the Securities Act with respect to an offer (available or, if permitted by the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange NotesCompany, (ii) one or more Unrestricted Global Subordinated Notes in an aggregate principal amount equal to the aggregate principal amount of the beneficial interests in the Restricted Global Subordinated Notes tendered in such Exchange Offer for acceptance by each Person that certifies in the applicable Letter of Transmittal that (w) it is not an affiliate (as defined in Rule 405 under the Securities Act) of the Company, (x) any Exchange Notes to be received by it will be acquired in the ordinary course of business, (y) it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes, and (z) it is not acting on behalf of any Person who could not truthfully make the statements set forth in clauses (w), (x), and (y) immediately above, and makes such other representations as may be reasonably necessary under applicable Commission rules, regulations, or interpretations to render the use their commercially reasonable efforts to of Form S-4 or another appropriate form under the Securities Act available. Concurrently with the issuance of any such Unrestricted Global Subordinated Notes upon exchange of Restricted Global Subordinated Notes, the Trustee will cause the Exchange Registration Statement aggregate principal amount of the applicable Restricted Global Subordinated Notes to become effective as promptly as practicable be reduced accordingly, and the Company will execute and the Trustee will authenticate and deliver to the Persons designated by the Holders of Restricted Definitive Subordinated Notes so accepted Unrestricted Definitive Subordinated Notes in the applicable principal amount. Any Subordinated Notes that remain outstanding after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their commercially reasonable efforts to issue on or prior to 30 days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any law or applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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 such Exchange Offer, and no material adverse development shall have occurred Exchange Notes issued in any existing actionconnection with such Exchange Offer, suit or proceeding with respect to will be treated as a single class of securities under this Indenture. For the Company and (iiiavoidance of doubt, the only remedy for breach of registration rights is the Additional Interest set forth in Section 2(e) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange OfferRegistration Rights Agreement.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) and (ii) the Collateral Agreements.
Appears in 1 contract
Samples: Indenture (Reliant Bancorp, Inc.)
Exchange Offer. (a) Parent and To the extent not prohibited by any applicable law or applicable interpretation of the staff of the SEC, the Company shall (and shall cause each other Guarantor to) (iA) prepare and and, on or prior to 45 days after the date of original issuance of the Notes (the "Issue Date"), file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form Statement under the Securities Act with respect to an offer (by the “Exchange Offer”) Company to the Holders holders of the Notes to issue and deliver to such Holdersholders, in exchange for the Notes, a like principal amount of Exchange Notes, (iiB) use their commercially reasonable its best efforts to cause the Exchange Registration Statement relating to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence to be declared effective by the Exchange Offer and use their commercially reasonable efforts to issue SEC under the Securities Act on or prior to 30 150 days after the date on which Issue Date, and (C) and use its best efforts to consummate the Ex- change Offer within 180 days after the Issue Date, the Exchange Registration Statement is declared effective, Notes. The offer and sale of the Exchange Notes in exchange for all Notes tendered prior thereto in pursuant to the Exchange OfferOffer shall be registered pursuant to the Securi- ties Act on an appropriate form (the "Exchange Registration Statement") and duly registered or qualified under all applica- ble state securities or Blue Sky laws and will comply with all applicable tender offer rules and regulations under the Ex- change Act and state securities or Blue Sky laws provided, how- ever, that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where they are not then so qualified or (ii) take any action which would subject them to general service of process or to taxation in excess of a nominal dollar amount in any jurisdiction where it is not so subject. The Exchange Offer shall not be subject to any conditionscondi- tion, other than that (i) the Exchange Offer does not violate any applicable law or interpretation of the staff of the SEC. It is further provided that if after the Exchange Registration Statement is declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Notes thereunder is interfered with by any stop order, injunction or other order or require- ment of the SEC or any other governmental agency or court, such Exchange Registration Statement shall be deemed not to have be- come effective for purposes of this Agreement. Upon consumma- tion of the Exchange Offer in accordance with this Section 2, the Company shall have no further registration obligations other than with respect to (i) Private Exchange Notes, (ii) Ex- change Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which Section 3(a)(iii) hereof applies. No securities shall be included in the Exchange Reg- istration Statement other than the Exchange Notes.
(b) The Company may require each holder of Notes, as a condition to its participation in the Exchange Offer, to rep- resent to the Company and their counsel in writing (which may be contained in the applicable ruleletter of transmittal) that at the time of the consummation of the Exchange Offer (i) any Ex- change Notes received by such holder will be acquired in the ordinary course of its business, regulation (ii) such holder will have no arrangement or understanding with any person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes and (iii) such holder is not an Affiliate of the Company, or if it is an Affiliate of the Company, it will comply with the registration and prospectus delivery require- ments of the Securities Act, to the extent applicable.
(c) If, prior to consummation of the Exchange Offer, the Initial Purchaser holds any Notes acquired by it and hav- ing, or which are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, or any other holder of Notes is not entitled to participate in the Exchange Offer, the Company, upon the request of the Ini- tial Purchaser or any such holder, shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchaser and any such holder, in exchange (the "Private Exchange") for such Notes held by the Initial Purchaser and any such holder, a like principal amount of debt securities of the Company, that are identical in all material respects to the Exchange Notes (the "Private Exchange Notes") (and which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
(d) Unless the Exchange Offer would not be permitted by any applicable law or interpretation of the staff of the SEC, the Company shall mail the Exchange Offer Prospectus and appropriate accompanying documents, including appropriate let- ters of transmittal, to each holder of Notes providing, in ad- dition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pur- suant to this Agreement and that all Notes validly tendered will be accepted for exchange;
(ii) the date of acceptance for exchange (the "Exchange Date"), which date shall in no actionevent be later than the Consummation Date (unless otherwise required by applicable law); (iii) that a holder of a Note electing to have a Note exchanged pursuant to the Exchange Offer will be required to surrender such Note, suit together with the enclosed letters of transmittal, to the institu- tion and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the Ex- change Date; and
(iv) that holders of Notes that do not tender all such securities pursuant to the Exchange Offer may no longer have any registration rights hereunder with respect to Notes not tendered. Promptly after the Exchange Date, the Company shall:
(i) accept for exchange all Notes or proceeding portions thereof validly tendered and not validly withdrawn pursu- ant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trus- tee for cancellation all Notes or portions thereof so ac- cepted for exchange by the Company, and issue, cause the Trustee under the Indenture (or the indenture pursuant to which the Exchange Notes are issued) to authenticate, and mail to each holder of Notes, Exchange Notes equal in principal amount to the principal amount of the Notes sur- rendered by such holder.
(e) The Company and the Initial Purchaser acknowl- edge that the staff of the SEC has taken the position that any broker-dealer that owns Exchange Notes that were received by such broker-dealer for its own account in the Exchange Offer (a "Participating Broker-Dealer") may be deemed to be an "underwriter" within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the origi- nal offering of the Notes). The Company and the Initial Purchaser also acknowl- edge that it is the SEC staff's position that if the Prospectus contained in the Exchange Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker- Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker- Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Partici- pating Broker-Dealer, the Company agrees (x) to use its best efforts to keep the Exchange Registration Statement continu- ously effective, and to amend and supplement the Prospectus contained therein, for a period of up to six months after the Consummation Date or such earlier date as each Participating Broker-Dealer shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of notified the Company to proceed with in writing that such Participating Broker-Dealer has resold all Exchange Notes acquired in the Exchange Offer, (y) to comply with the provi- sions of Section 5 of this Agreement, as they relate to the Ex- change Offer and no material adverse development shall have occurred in any existing actionthe Exchange Registration Statement, suit or proceeding with respect and (z) to deliver to such Participating Broker-Dealer a "cold comfort" letter of the independent public accountants of the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company a legal opinion as to matters reasonably deems necessary for the consummation of requested by such Par- ticipating Broker-Dealer relating to the Exchange OfferRegistration Statement and the related Prospectus and any amendments or sup- plements thereto.
(bf) The Initial Purchaser, in such capacity, shall have no liability to any Participating Broker-Dealer with re- spect to any request made pursuant to Section 2(e).
(g) Interest on the Exchange Notes and the Private Exchange Notes will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from Issue Date.
(h) The Exchange Notes shall and the Private Exchange Notes may be issued under, and entitled to the benefits of, under (i) 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 qualifications thereof under the TIA) and (ii) an inden- ture identical in all material respects to the Collateral AgreementsIndenture, which in either event shall provide that (1) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (2) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
Appears in 1 contract
Exchange Offer. (a) Parent To the extent not prohibited by applicable law, the Issuers and the Company shall (and shall cause each other Guarantor to) Guarantors shall:
(i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the Securities Act with respect to an a proposed offer (the “Exchange Offer”) to the Holders to exchange any and all of the Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, ;
(ii) use their commercially respective reasonable best efforts to cause the Exchange Exchange Offer Registration Statement to become effective as under the Securities Act promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, ;
(iii) use their commercially reasonable efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer in accordance with pursuant to its terms, and ; and
(iv) unless the Exchange Offer would not be permitted by a policy of the SEC, use their respective commercially reasonable efforts to commence the Exchange Offer and use their commercially reasonable efforts to issue on or prior to 30 to, promptly, but in no event later than 60 days after the date on which the Exchange Offer Registration Statement is declared effective, consummate the Exchange Notes Offer and issue Exchange Securities in exchange for all Notes validly tendered and not withdrawn prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) that the Exchange Offer does not violate Applicable Law or any law or applicable rule, regulation or interpretation of the staff of the SEC, and (ii) no action, suit 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 Issuers or the Guarantors to proceed with the Exchange OfferOffer or, and no material adverse development shall have occurred in any existing actionif required to be made pursuant to Section 2(g), suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange OfferPrivate Exchange.
(b) The Exchange Notes Securities shall be issued under, and entitled to the benefits of, (i) the Indenture or a trust indenture that is substantially identical to the Indenture (other than such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualifications qualification thereof under the TIA).
(c) In connection with the Exchange Offer, the Issuers and the Guarantors shall:
(i) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal that is an exhibit to the Exchange Offer Registration Statement, and any related documents;
(ii) use their respective reasonable best efforts to keep the Exchange Offer open for not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by Applicable Law);
(iii) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, in the City of New York;
(iv) permit Holders to withdraw tendered Notes at any time prior to 5:00 P.M., New York City time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all laws applicable to the Exchange Offer.
(d) As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Issuers and the Guarantors shall:
(i) subject to Section 2(i) hereof, accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(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; provided, that, in the case of any Notes held in global form by a depsoitary, authentication and delivery to such depositary of one or more replacement Exchange Securities in global form in an equivalent princiapl amount therefor for the account of such Holder in accordance with the Indenture shall satisfy such authentication and delivery requirement.
(e) Interest on each Exchange Security and each Private Exchange Security will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the Closing Date. Each Exchange Security and each Private Exchange Security shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes surrendered in exchange therefor from time to time during such period.
(f) The Issuers and the Guarantors shall include a “Plan of Distribution” section in the Prospectus contained in the Exchange Offer Registration Statement and indicate therein that (i) any broker or dealer registered under the Exchange Act that holds Notes that were acquired for its own account as a result of market-making activities or other trading activities (other than Notes acquired directly from the Issuers or any Affiliate of the Issuers) (a “Participating Broker-Dealer”) may exchange such Notes pursuant to the Exchange Offer, however, such Participating Broker-Dealer may be deemed to be an “underwriter” within the meaning of the Securities Act and must, therefore, deliver a prospectus meeting the requirements of the Securities Act in connection with its initial sale of any Exchange Securities received by such Participating Broker-Dealer in the Exchange Offer and (ii) the Collateral AgreementsProspectus contained in the Exchange Offer Registration Statement may be used to satisfy such prospectus delivery requirement. Such “Plan of Distribution” section shall also contain all other information with respect to such sales by such Participating Broker-Dealers that the SEC may require in order to permit such sales pursuant thereto, but such “Plan of Distribution” shall not name any such Participating Broker-Dealer or disclose the amount of Notes held by any such Participating Broker-Dealer, except to the extent required by the SEC. See the Shearman & Sxxxxxxx no-action letter (available July 2, 1993). Such “Plan of Distribution” section shall also allow, to the extent and in the manner permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all other Persons subject to the prospectus delivery requirements of the Securities Act. The Issuers and the Guarantors shall use their respective reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective and to amend and supplement the Prospectus in order to permit such Prospectus to be lawfully delivered by all Participating Broker-Dealers and other Persons subject to the prospectus delivery requirement of the Securities Act for such period of time as such Participating Broker-Dealers and Persons must comply with such requirements in order to resell the Exchange Securities (the “Applicable Period”).
Appears in 1 contract
Samples: Registration Rights Agreement (Peninsula Gaming, LLC)
Exchange Offer. (a) Parent Unless the Exchange Offer would not be permitted by applicable laws or a policy or currently prevailing applicable interpretations of the staff of the SEC, the Issuer and the Company Successor shall (and shall cause each other Guarantor to) (i) prepare and file (which shall include a quiet paper filing if the SEC permits such filings by a foreign private issuer (as defined in Rule 405 of the Securities Act)) with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an a proposed offer (the “Exchange Offer”) to the Holders of Notes who are not prohibited by law or a policy or currently prevailing applicable interpretations of the SEC from participating in the Exchange Offer to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their commercially reasonable efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their commercially reasonable efforts to commence the Exchange Offer and issue on or prior to 30 days Business Days after the date on which the Exchange Registration Statement is declared effectiveeffective (or such longer period as may be required by the Securities Act or the Exchange Act), Exchange Notes in exchange for all Notes validly tendered and not withdrawn prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation policy or interpretation currently prevailing applicable interpretations of the staff of the SEC, (ii) no action, suit 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 Issuer and the Guarantors to proceed with the Exchange Offer, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company Offer and (iii) all necessary governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary obtained for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) and (ii) the Collateral Agreements.
(c) Interest on the Exchange Notes and Private Exchange Notes will accrue from (i) the later of (x) the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or, (y) if the Note is surrendered for exchange on a date in a period that includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date, or (ii) if no interest has been paid on the Notes, from the date of original issue of the Notes. Each Exchange Note and Private Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Issuer may require each Holder as a condition to participation in the Exchange Offer to represent in writing to the Issuer and the Guarantors, prior to the time of the consummation of the Exchange Offer, (i) that any Exchange Notes received by it will be acquired in the ordinary course of its business, (ii) that at the time of the commencement and consummation of the Exchange Offer, such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that such Holder is not an “affiliate” (as defined in Rule 405 of the Securities Act) of the Issuer and, if such Holder is an “affiliate” of the Issuer, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, the distribution of the Notes and (v) if such Holder is a Participating Broker-Dealer, that it will comply with the applicable prospectus delivery requirements of the Securities Act in connection with any resale of the Exchange Notes.
(e) The Issuer and the Successor shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchaser which shall contain (i) a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity (a “Participating Broker-Dealer”) and (ii) all other information with respect to such sales by such Participating Broker-Dealers that the SEC may require in order to permit such sales pursuant thereto. Such “Plan of Distribution” section shall also allow, to the extent and in the manner permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Issuer shall use its commercially reasonable efforts to keep the Exchange 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 that such period shall not exceed the lesser of 180 days and the date on which all Persons subject to the prospectus delivery requirements of the Securities Act have sold all Exchange Notes held by them (the “Applicable Period”).
(f) If, upon consummation of the Exchange Offer, the Initial Purchaser holds any Notes acquired by it and having the status of an unsold allotment in the initial distribution of the Notes, the Issuer (upon the written request from the Initial Purchaser) shall, no later than the earlier of (i) 30 days after the delivery of the Exchange Notes in the Exchange Offer and (ii) the declaration of effectiveness by the SEC of a Registration Statement covering the resale of all Private Exchange Notes to be issued and delivered as described in this sentence, issue and deliver to the Initial Purchaser, in exchange (the “Private Exchange”) for the Notes held by the Initial Purchaser, a like principal amount of Senior Secured Notes that are substantially identical to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (the “Private Exchange Notes”). The Issuer shall use all reasonable efforts to cause the Private Exchange Notes to bear the same CUSIP number as the Exchange Notes.
(g) In connection with the Exchange Offer, the Issuer and the Successor shall (and shall cause each Guarantor to):
(i) Mail, or cause to be mailed to each Holder of record a copy of the Prospectus forming part of the Exchange 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 depository for the Exchange Offer with an address in the Borough of Manhattan, the City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all applicable laws.
(h) As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Issuer and the Successor shall (and shall cause each Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered pursuant to the Exchange Offer or the Private Exchange, as the case may be, and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder validly tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided, that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Exchange Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement.
(i) The Exchange Notes and the Private Exchange Notes may be issued under (i) the Indenture or (ii) an indenture 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), which in either event will provide that the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture, that the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in all the security granted by the Issuer and the Guarantors pursuant to the Collateral Agreements and in any Guarantee (as such terms are defined in the Indenture) on an equal and ratable basis.
(j) If: (i) prior to the consummation of the Exchange Offer, the Holders of a majority in aggregate principal amount of Registrable Notes determines in its or their reasonable judgment that the Exchange Notes would not, upon receipt, be tradeable by the Holders thereof without restriction under the Securities Act and the Exchange Act and without material restrictions under applicable Blue Sky or state securities laws; (ii) because of any change in law or currently prevailing applicable interpretations of the staff of the SEC the Issuer determines upon advice of outside counsel that it is not permitted to consummate the Exchange Offer prior to the Effectiveness Date; (iii) subsequent to the consummation of the Private Exchange, any Holder of Private Exchange Notes so requests; (iv) the Exchange Offer is not consummated within 30 Business Days from the date the Exchange Registration Statement was declared effective; or (v) in the case of (A) any Holder not permitted by applicable law or SEC policy to participate in the Exchange Offer, (B) any Holder participating in the Exchange Offer that receives Exchange Notes that may not be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Issuer within the meaning of the Securities Act) or (C) any broker-dealer that holds Notes acquired directly from the Issuer or any of its affiliates and, in each such case contemplated by this clause (v), such Holder notifies the Issuer (1) within six months of consummation of the Exchange Offer in the case of a Holder described in subsection (C) of this clause (v) or (2) as soon as is reasonably practicable and in any event within 120 days of consummation of the Exchange Offer in the case of a Holder described in subsection (A) or (B) of this clause (v), then the Issuer shall promptly (and in any event within ten Business Days) deliver to the Holders (or in the case of an occurrence of any event described in clause (iii) or (v) of this Section 2(j), to any such Holder) and the Trustee notice thereof (the “Shelf Notice”) and shall as promptly as possible thereafter (but in no event later than 30 days after delivery of the Shelf Notice) file an Initial Shelf Registration pursuant to Section 3.
Appears in 1 contract
Exchange Offer. (a) Parent Unless the Exchange Offer would not be permitted by applicable laws or applicable interpretations of the staff of the SEC, the Partnership and the Company Parent shall (and shall cause each other Subsidiary Guarantor to) use its commercially reasonable efforts to (i) prepare and file with the SEC promptly after the date hereof, but in no event later than on or before the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their commercially reasonable efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than on or before the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their commercially reasonable efforts to issue on or prior to 30 days before the 30th Business Day after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes validly tendered prior thereto in the Exchange Offer. The Other than as set forth in this Agreement, including in Section 2(d) hereto, the Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any law or applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) of the Indenture or a trust indenture that is identical to the Indenture Indenture.
(other than c) Interest on the Exchange Notes and Private Exchange Notes will accrue from the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes.
(d) The Partnership may require each Holder as a condition to participation in the Exchange Offer to represent (i) that any Exchange Notes received by it will be acquired in the ordinary course of its business, (ii) that at the time of the commencement and consummation of the Exchange Offer such changes as are necessary Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that if such Holder is an “affiliate” of the Partnership within the meaning of Rule 405 of the Securities Act, it will comply with any the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Partnership and the Parent shall (and shall cause each Subsidiary Guarantor to) include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to effect the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or maintain other trading activity (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the qualifications staff of the SEC or such positions or policies that, in the judgment of the Initial Purchasers, represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Partnership and the Parent shall use their commercially reasonable efforts to keep the Exchange 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 (the “Applicable Period”).
(f) If, upon consummation of the Exchange Offer, any Initial Purchaser holds any Notes acquired by it and having the status of an unsold allotment in the initial distribution, the Partnership (upon the written request from the Initial Purchasers) shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for the Notes held by the Initial Purchasers, a like principal amount of Senior Notes that are identical to the Exchange Notes except for the existence of restrictions on transfer thereof under the TIASecurities Act and securities laws of the several states of the United States (the “Private Exchange Notes”) (and which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
(g) In connection with the Exchange Offer, the Partnership and the Parent shall (and shall cause each Subsidiary Guarantor to):
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Registration Statement, together with an appropriate letter of transmittal that is an exhibit to the Exchange 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) and until the Partnership has accepted all Notes validly tendered in accordance with the terms of the Exchange Offer;
(iii) utilize the services of a depository for the Exchange Offer with an address in the Borough of Manhattan, the City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all applicable laws.
(h) As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Partnership and the Parent shall (and shall cause each Subsidiary Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered pursuant to the Exchange Offer or the Private Exchange, as the case may be, and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange.
(i) The Exchange Notes and the Private Exchange Notes shall be issued under the Indenture, which will provide that the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture, that the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in any Note Guarantee (as such term is defined in the Indenture) on an equal and ratable basis.
(j) If: (i) the Partnership determines that applicable laws or applicable interpretations of the staff of the SEC would not permit the consummation of the Exchange Offer on or prior to the 30th Business Day following the Effectiveness Date; (ii) the Collateral AgreementsExchange Offer is not consummated on or prior to the 90th Business Day following the Effectiveness Date (provided that this shall not effect the obligations to pay Additional Interest after the 30th such Business Day pursuant to Section 4(a)(iii)(A)); or (iii) in the case of any Initial Purchaser representing that, on advice of counsel, it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer and such Initial Purchaser notifies the Partnership within six months of consummation of the Exchange Offer, then the Partnership and the Parent shall promptly (and in any event within five Business Days) deliver to the Holders (or in the case of an occurrence of any event described in clause (iii) of this Section 2(j), to any such Initial Purchaser) and the Trustee notice thereof (the “Shelf Notice”) and shall within the later of the Filing Date and 30 days of notification by a Holder file an Initial Shelf Registration pursuant to Section 3.
Appears in 1 contract
Samples: Registration Rights Agreement (Dupont Fabros Technology, Inc.)
Exchange Offer. (a) Parent The Issuers and the Company shall (and shall cause each other Guarantor to) Guarantors shall:
(i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement with respect to the Initial Notes (the “Exchange Offer Registration Statement”) on an appropriate form under the Securities Act with respect to an a proposed offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Initial Notes, a like aggregate principal amount at maturity of Exchange Notes, ;
(ii) use their commercially reasonable respective best efforts to cause the Exchange Exchange Offer Registration Statement to become effective under the Securities Act as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, ;
(iii) use their commercially reasonable efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer in accordance with pursuant to its terms, and ; and
(iv) unless the Exchange Offer would not be permitted by a policy of the SEC, commence the Exchange Offer and use their commercially reasonable respective best efforts to issue to, on or prior to 30 days Business Days after the date on which the Exchange Offer Registration Statement is declared effective, consummate the Exchange Offer and issue Exchange Notes in exchange for all Initial Notes validly tendered and not validly withdrawn prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit . If applicable law or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability applicable interpretations of the Company to proceed with Staff of the Exchange Offer, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for SEC would not permit the consummation of the Exchange OfferOffer prior to the Effectiveness Date, the Issuers and the Guarantors shall deliver a Shelf Notice pursuant to Section 2(h) and file an Initial Shelf Registration pursuant to Section 3.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications qualification thereof under the TIA).
(c) In connection with the Exchange Offer, the Issuers and the Guarantors shall:
(i) mail, or cause to be mailed, to each Holder of record 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 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 the Trustee or an affiliate thereof;
(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) subject to clauses (ii), (iii) and (v) of Section 2(i), accept for exchange all Initial Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all Initial Notes so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver to each Holder of Notes, Exchange Notes equal in aggregate principal amount at maturity to the Initial Notes of such Holder so accepted for exchange; provided, that, in the case of any Initial Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Exchange Notes in global form in an equivalent principal amount at maturity thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement.
(e) Interest on each Exchange Note and each Private Exchange Note will accrue from the last interest payment date on which interest was paid on the Initial Notes surrendered in exchange therefor or, if no interest has been paid on the Initial Notes, from the date of original issue of the Initial Notes. Each Exchange Note and each Private Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Initial Notes surrendered in exchange therefor from time to time during such period.
(f) The Issuers and the Guarantors shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” containing a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”). Such “Plan of Distribution” section shall also allow, to the extent and in the manner permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including (without limitation) all Participating Brokers-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Issuers and the Guarantors shall use their respective best efforts to keep the Exchange Offer Registration Statement continuously effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery 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 resell the Exchange Notes and (ii) the Collateral Agreementsperiod ending when all Registrable Notes covered by the Exchange Offer Registration Statement have been sold pursuant thereto (the “Applicable Period”).
(g) If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Initial Notes acquired by them and having the status as an unsold allotment in the initial distribution of the Initial Notes, the Issuers and the Guarantors shall, upon the request of the Initial Purchasers, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue (pursuant to the same indenture as the Exchange Notes and subject to transfer restrictions thereon) and deliver to the Initial Purchasers, in exchange for the Initial Notes held by the Initial Purchasers (the “Private Exchange”), a like principal amount at maturity of debt securities of the Issuers, including guarantees endorsed thereon, that are identical to the Exchange Notes (the “Private Exchange Notes”), except for the existence of transfer restrictions thereon. If required by DTC or CUSIP, the Private Exchange Notes may bear a different CUSIP number than the Exchange Notes.
(h) The Issuers and the Guarantors may require each Holder as a condition to participation in the Exchange Offer to represent in writing to the Issuers and the Guarantors that, at the time of the consummation of the Exchange Offer: (i) any Exchange Notes received by such Holder in the Exchange Offer will be acquired in the ordinary course of its business; (ii) such Holder will have no arrangement or understanding with any Person to participate in the distribution of the Exchange Notes within the meaning of the Securities Act or resale of the Exchange Notes in violation of the Securities Act; (iii) if such Holder is not a broker-dealer, it is not engaged in and does not intend to engage in, the distribution of the Exchange Notes; (iv) if such Holder is a Participating Broker-Dealer, it will deliver a prospectus, as required by law, in connection with any resale of such Exchange Notes; and (v) such Holder is not an affiliate (as defined in Rule 405 of the Securities Act) of either of the Issuers or, if such Holder is an affiliate of either of the Issuers, it will comply with the registration and prospectus delivery requirements of the Securities Act applicable to it.
(i) If:
(i) prior to the consummation of the Exchange Offer, either of the Issuers or the Holders of a majority in aggregate principal amount at maturity of Registrable Notes, determines in its or their reasonable judgment that (A) the Exchange Notes would not, upon receipt, be tradeable by the Holders thereof without restriction under the Securities Act and the Exchange Act and without material restrictions under applicable Blue Sky or state securities laws, or (B) the interests of the Holders under this Agreement, taken as a whole, would be materially adversely affected by the consummation of the Exchange Offer;
(ii) applicable law, a policy of the SEC or interpretations of the Staff of the SEC would not permit the consummation of the Exchange Offer prior to the Effectiveness Date;
(iii) subsequent to the consummation of the Private Exchange, any Holder of Private Exchange Notes issued so requests;
(iv) the Exchange Offer is not consummated within 195 days of the Closing Date for any reason; or
(v) in the case of (A) any Holder not permitted to participate in the Exchange Offer, (B) any Holder participating in the Exchange Offer that receives Exchange Notes that may not be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of either of the Issuers within the meaning of the Securities Act) or (C) any broker-dealer that holds Registrable Notes acquired directly from the Issuers or any of their respective affiliates and, in each such case contemplated by this clause (v), such Holder notifies the Issuers within six months of consummation of the Exchange Offer, then the Issuers shall promptly (and in any event within five Business Days) deliver to the Holders (or in the case of an occurrence of any event described in clause (v) of this Section 2(i), to any such Holder) of and the Trustee notice thereof (the “Shelf Notice”) and shall as promptly as practicable thereafter (but in no event later than the Shelf Filing Date) file an Initial Shelf Registration pursuant to Section 3.
Appears in 1 contract
Samples: Registration Rights Agreement (155 East Tropicana, LLC)
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Subsidiary Guarantor to) (i) prepare and file with the SEC promptly after the date hereof, but in no event later than on or prior to the Filing Date, a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes Transfer Restricted Securities to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their its commercially reasonable efforts to cause the Exchange Offer Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their its commercially reasonable efforts to issue on or prior to 30 days Business Days, or longer, if required by the federal securities laws, after the date on which the Exchange Offer Registration Statement is declared effective, Exchange Notes in exchange for all Notes validly tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC.
(b) Interest on the Exchange Notes and Private Exchange Notes will accrue from the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the Closing Date. Each Exchange Note and Private Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(c) The Company may require each Holder as a condition to participation in the Exchange Offer to represent (i) that any Exchange Notes received by it will be acquired in the ordinary course of its business, (ii) no actionthat at the time of the commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, suit or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability (iii) that if such Holder is an “affiliate” of the Company within the meaning of Rule 405 of the Securities Act, it will comply with the registration and prospectus delivery requirements of the Securities Act to proceed the extent applicable to it, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(d) The Company shall (and shall cause each Subsidiary Guarantor to) include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchaser which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such Persons must comply with such requirements in order to resell the Exchange Notes (the “Applicable Period”).
(e) If, upon consummation of the Exchange Offer, the Initial Purchaser holds any Notes acquired by it and having the status of an unsold allotment in the initial distribution, the Company (upon the written request from the Initial Purchaser) shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchaser, in exchange (the “Private Exchange”) for the Notes held by the Initial Purchaser, a like principal amount of Senior Secured Notes that are identical to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (the “Private Exchange Notes”) (and which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
(f) In connection with the Exchange Offer, the Company shall (and no material adverse development shall have occurred in any existing actioncause each Subsidiary Guarantor to):
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, suit or proceeding together with respect an appropriate letter of transmittal that is an exhibit to the Company Exchange Offer Registration Statement, and any related documents;
(ii) keep the Exchange Offer open for not less than 30 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law)
(iii) all governmental approvals shall have been obtainedutilize the services of a depository for the Exchange Offer with an address in the Borough of Manhattan, the City of New York, which approvals may be the Company reasonably deems necessary for Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Transfer Restricted Securities at any time prior to the consummation close of business, New York City time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all applicable laws.
(g) As soon as practicable after the close of the Exchange OfferOffer or the Private Exchange, as the case may be, the Company shall (and shall cause each Subsidiary Guarantor to):
(i) accept for exchange all Transfer Restricted Securities validly tendered pursuant to the Exchange Offer or the Private Exchange, as the case may be, and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Transfer Restricted Securities so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Transfer Restricted Securities, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange.
(bh) The Exchange Notes shall and the Private Exchange Notes may be issued under, and entitled to the benefits of, under (i) the Indenture or (ii) 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 qualifications qualification thereof under the TIA), which in either event will provide that the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture, that the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in all the security granted by the Company pursuant to the Collateral Documents and in any Guarantee (as such terms are defined in the Indenture) on an equal and ratable basis.
(i) If: (i) applicable law or applicable interpretations of the staff of the SEC would not permit the consummation of the Exchange Offer prior to the Effectiveness Date; or (ii) in the Collateral Agreementscase of (A) any Holder not permitted by applicable law or SEC policy to participate in the Exchange Offer, (B) any Holder participating in the Exchange Offer that receives Exchange Notes that may not be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) or (C) any broker-dealer that holds Notes acquired directly from the Company or any of its affiliates and, in each such case contemplated by this clause (v), such Holder notifies the Company prior to 20 Business Days following the consummation of the Exchange Offer, then the Company shall promptly (and in any event within five Business Days) deliver to the Holders (or in the case of an occurrence of any event described in clause (ii) of this Section 2(i), to any such Holder) and the Trustee notice thereof (the “Shelf Notice”) and shall as promptly as possible thereafter (but in no event later than the Shelf Filing Date) file an Initial Shelf Registration pursuant to Section 3.
Appears in 1 contract
Samples: Debt Registration Rights Agreement (Green Field Energy Services, Inc.)
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Guarantor to) )
(i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Offer Registration Statement”) on an appropriate registration form under the Securities Act with respect to an offer (the “Exchange Offer”) to exchange the Holders of Notes for Exchange Notes guaranteed by the Guarantors, which shall have terms substantially identical in all material respects to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their its commercially reasonable efforts to cause the Exchange Offer Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their its commercially reasonable efforts to issue on or prior to 30 50 days after the date on which the Exchange Registration Statement is declared effectiveEffectiveness Date, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes and the Private Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) and which in either case will provide that (i) the Exchange Notes will not be subject to the transfer restrictions or additional interest provisions set forth in the Indenture, (ii) the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture and (iii) the Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in all the security granted by the Company pursuant to the Collateral AgreementsDocuments and in any Guarantee (as such terms are defined in the Indenture) on an equal and ratable basis.
(c) Interest on the Exchange Notes and Private Exchange Notes will accrue from (i) the later of (x) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or (y) if the Note is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (ii) if no interest has been paid on the Notes, from the Issue Date. Each Exchange Note and Private Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to represent to the Company that at the time of the consummation of the Exchange Offer, (i) any Exchange Notes received by such Holder will be acquired in the ordinary course of its business, (ii) at the time of commencement of the Exchange Offer such Holder has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) such Holder is not an “affiliate” (as defined in Rule 405 of the Securities Act) of the Company or if such Holder is an affiliate such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers which shall contain all of the information that the SEC requires with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making activities or other trading activities (a “Participating Broker-Dealer”). Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such Persons must comply with such requirements in order to resell the Exchange Notes (the “Applicable Period”).
(f) If, upon consummation of the Exchange Offer, either Initial Purchaser holds any Notes acquired by it and having the status of an unsold allotment in the initial distribution, the Company (upon the written request from either Initial Purchaser) shall, simultaneously with the delivery of the Exchange Notes pursuant to the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Notes held by such Initial Purchaser, a like principal amount at maturity of debt securities of the Company, including guarantees endorsed thereon (issued under the same Indenture as the Exchange Notes) that are identical in all material respects to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (the “Private Exchange Notes”). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
(g) In connection with the Exchange Offer, the Company shall (and shall cause each Guarantor to):
(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 (substantially in the form attached as 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 (or longer if required by applicable law) after the date notice thereof is mailed to the Holders;
(iii) utilize the services of a depository for the Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply with all applicable laws.
(h) As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Company shall (and shall cause each Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered and not withdrawn pursuant to the Exchange Offer or the Private Exchange, as the case may be;
(ii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount at maturity to the Notes of such Holder so accepted for exchange.
(i) If, (i) because of any change in law or in applicable interpretations thereof by the staff of the SEC the Company is not permitted to effect an Exchange Offer, (ii) for any other reason the Exchange Offer Registration Statement is not declared effective on or prior to the Effectiveness Date, or the Exchange Offer is not consummated within 50 days after the Effectiveness Date, (iii) either Initial Purchaser so requests with respect to the Notes (or the Private Exchange Notes) not eligible to be exchanged for Exchange Notes in the Exchange Offer and held by it following consummation of the Exchange Offer, or (iv) in the case of (A) any Holder not permitted to participate in the Exchange Offer, (B) any Holder participating in the Exchange Offer that does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) or (C) any Participating Broker Dealer holds Notes acquired directly from the Company or one of its affiliates, then in each case the Company shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall as promptly as practicable and at its sole expense file an Initial Shelf Registration Statement pursuant to Section 3.
Appears in 1 contract
Samples: Registration Rights Agreement (Sterling Chemicals Inc)
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Subsidiary Guarantor to) (i) prepare and file with the SEC promptly on or prior to 120 days after the date hereof, but in no event later than the Filing Closing Date, a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their its commercially reasonable efforts to cause the Exchange Offer Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their its commercially reasonable efforts to issue on or prior to 30 days 45 Business Days, or longer, if required by applicable securities laws, after the date on which the Exchange Offer Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in accordance with the terms of the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA).
(c) and Interest on the Exchange Notes will accrue from the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes. Each Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to make such representations as may be required by applicable law or any applicable interpretation of the staff of the SEC, including (i) that any Exchange Notes received by it will be acquired in the ordinary course of its business, (ii) that at the Collateral Agreementstime of the commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that if such Holder is an “affiliate” of the Company within the meaning of Rule 405 of the Securities Act, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Subsidiary Guarantor to) include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the judgment of the Initial Purchasers, represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such Persons must comply with such requirements in order to resell the Exchange Notes (the “Applicable Period”).
(f) [Intentionally Omitted].
(g) In connection with the Exchange Offer, the Company shall (and shall cause each Subsidiary Guarantor to):
(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 45 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law);
(iii) utilize the services of a depository for the Exchange Offer with an address in the Borough of Manhattan, the City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Transfer Restricted Securities 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 in all material respects with all applicable laws.
(h) As soon as practicable after the close of the Exchange Offer, the Company shall (and shall cause each Subsidiary Guarantor to):
(i) accept for exchange all Transfer Restricted Securities validly tendered pursuant to the Exchange Offer and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Transfer Restricted Securities so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Transfer Restricted Securities, Exchange Notes equal in principal amount to the Notes of such Holder so accepted for exchange.
(i) The Exchange Notes may be issued under (i) the Indenture or (ii) an indenture 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), which in either event will provide that the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in any Subsidiary Guarantee (as such terms are defined in the Indenture) on an equal and ratable basis.
(j) If: (i) the Company is not (a) required to file the Exchange Offer Registration Statement or (b) permitted to consummate the Exchange Offer because the Exchange Offer is not permitted by applicable law or SEC policy; or (ii) any holder of Entitled Securities notifies First Cash prior to the 20th Business Day following consummation of the Exchange Offer that: (a) it is prohibited by law or SEC policy from participating in the Exchange Offer; (b) it may not resell the Exchange Notes acquired by it in the Exchange Offer to the public without delivering a Prospectus and the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales; or (c) it is a broker-dealer and owns Notes acquired directly from the Company or an affiliate of the Company, then the Company shall promptly (and in any event within five Business Days) deliver to the Holders (or in the case of an occurrence of any event described in clause (ii) of this Section 2(j), to any such Holder) and the Trustee notice thereof (the “Shelf Notice”) and shall file an Initial Shelf Registration pursuant to Section 3.
Appears in 1 contract
Samples: Registration Rights Agreement (First Cash Financial Services Inc)
Exchange Offer. (a) Parent and the The Company shall (and shall cause each other Guarantor to) (i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the Securities Act with respect to an a proposed offer (the “"Exchange Offer”") to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like aggregate principal amount of Exchange NotesSecurities, (ii) use their commercially reasonable its best efforts to cause the Exchange Offer Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer in accordance with pursuant to its terms, and (iv) unless the Exchange Offer would not be permitted by a policy of the SEC, commence the Exchange Offer and use their commercially reasonable its best efforts to issue issue, on or prior to 30 days Business Days after the date on which the Exchange Offer Registration Statement is declared effective, Exchange Notes Securities in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) that the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, SEC and (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offeras otherwise expressed herein.
(b) The Exchange Notes Securities shall be issued under, and entitled to the benefits of, (i) the Indenture, the Series A/B Indenture or a trust indenture that is substantially identical to the Indenture or the Series A/B Indenture (other than such changes as are necessary to (i) provide for the issuance of Exchange Securities that are the same as the securities issued in exchange for the Series A Notes pursuant to the Series A Registration Rights Agreement or (ii) comply with any requirements of the SEC to effect or maintain the qualifications qualification thereof under the TIA).
(c) In connection with the Exchange Offer, 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 that is an exhibit to the Exchange Offer Registration Statement and related documents;
(ii) keep the Collateral AgreementsExchange 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 depository 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 Company 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 Private Exchange Security will accrue (or principal will accrete, as applicable) from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes. Each Exchange Security and Private Exchange Security shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(f) The Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled "Plan of Distribution," containing a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Securities received by such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"). Such "Plan of Distribution" section shall also allow the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including (without limitation) all Participating Brokers-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Securities. The Company shall use its best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirement of the Securities Act for such period of time as such Persons must comply with such requirements in order to resell the Exchange Securities; provided that such period shall not exceed 180 days after consummation of the Exchange Offer (as such period may be extended pursuant to the last paragraph of Section 6 (the "Applicable Period").
Appears in 1 contract
Samples: Registration Rights Agreement (Transamerican Refining Corp)
Exchange Offer. (a) Parent To the extent not prohibited by applicable law, the Issuers and the Company shall (and shall cause each other Guarantor to) Guarantors shall:
(i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the Securities Act with respect to an a proposed offer (the “Exchange Offer”) to the Holders to exchange any and all of the Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, ;
(ii) use their commercially respective reasonable best efforts to cause the Exchange Exchange Offer Registration Statement to become effective as under the Securities Act promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, ;
(iii) use their commercially reasonable efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer in accordance with pursuant to its terms, and ; and
(iv) unless the Exchange Offer would not be permitted by a policy of the SEC, use their respective commercially reasonable efforts to commence the Exchange Offer and use their commercially reasonable efforts to issue on or prior to 30 to, promptly, but in no event later than 60 days after the date on which the Exchange Offer Registration Statement is declared effective, consummate the Exchange Notes Offer and issue Exchange Securities in exchange for all Notes validly tendered and not withdrawn prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) that the Exchange Offer does not violate Applicable Law or any law or applicable rule, regulation or interpretation of the staff of the SEC, and (ii) no action, suit 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 Issuers or the Guarantors to proceed with the Exchange OfferOffer or, and no material adverse development shall have occurred in any existing actionif required to be made pursuant to Section 2(g), suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange OfferPrivate Exchange.
(b) The Exchange Notes Securities shall be issued under, and entitled to the benefits of, (i) the Indenture or a trust indenture that is substantially identical to the Indenture (other than such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualifications qualification thereof under the TIA).
(c) In connection with the Exchange Offer, the Issuers and the Guarantors shall:
(i) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal that is an exhibit to the Exchange Offer Registration Statement, and any related documents;
(ii) use their respective reasonable best efforts to keep the Exchange Offer open for not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by Applicable Law);
(iii) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, in the City of New York;
(iv) permit Holders to withdraw tendered Notes at any time prior to 5:00 P.M., New York City time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all laws applicable to the Exchange Offer.
(d) As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Issuers and the Guarantors shall:
(i) subject to Section 2(i) hereof, accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(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; provided, that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Exchange Securities in global form in an equvalent principal amount thereto for the account of such HOlder in accordance with the Indenture shall satisfy such authentication and delivery requirement.
(e) Interest on each Exchange Security and each Private Exchange Security will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the Closing Date. Each Exchange Security and each Private Exchange Security shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes surrendered in exchange therefor from time to time during such period.
(f) The Issuers and the Guarantors shall include a “Plan of Distribution” section in the Prospectus contained in the Exchange Offer Registration Statement and indicate therein that (i) any broker or dealer registered under the Exchange Act that holds Notes that were acquired for its own account as a result of market-making activities or other trading activities (other than Notes acquired directly from the Issuers or any Affiliate of the Issuers) (a “Participating Broker-Dealer”) may exchange such Notes pursuant to the Exchange Offer, however, such Participating Broker-Dealer may be deemed to be an “underwriter” within the meaning of the Securities Act and must, therefore, deliver a prospectus meeting the requirements of the Securities Act in connection with its initial sale of any Exchange Securities received by such Participating Broker-Dealer in the Exchange Offer and (ii) the Collateral AgreementsProspectus contained in the Exchange Offer Registration Statement may be used to satisfy such prospectus delivery requirement. Such “Plan of Distribution” section shall also contain all other information with respect to such sales by such Participating Broker-Dealers that the SEC may require in order to permit such sales pursuant thereto, but such “Plan of Distribution” shall not name any such Participating Broker-Dealer or disclose the amount of Notes held by any such Participating Broker-Dealer, except to the extent required by the SEC. See the Shearman & Sterling no-action letter (available July 2, 1993). Such “Plan of Distribution” section shall also allow, to the extent and in the manner permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all other Persons subject to the prospectus delivery requirements of the Securities Act. The Issuers and the Guarantors shall use their respective reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective and to amend and supplement the Prospectus in order to permit such Prospectus to be lawfully delivered by all Participating Broker-Dealers and other Persons subject to the prospectus delivery requirement of the Securities Act for such period of time as such Participating Broker-Dealers and Persons must comply with such requirements in order to resell the Exchange Securities (the “Applicable Period”).
Appears in 1 contract
Samples: Registration Rights Agreement (Peninsula Gaming, LLC)
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy or currently prevailing applicable interpretations of the staff of the SEC, the Company shall (and shall cause each other Subsidiary Guarantor to) (i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an a proposed offer (the “Exchange Offer”) to the Holders of Notes who are not prohibited by law or a policy or currently prevailing applicable interpretations of the SEC from participating in the Exchange Offer to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their its commercially reasonable efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their its commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) use its commercially reasonable efforts to commence the Exchange Offer and use their commercially reasonable efforts to issue on or prior to 30 days Business Days after the date on which the Exchange Registration Statement is declared effectiveeffective (or such longer period as may be required by the Securities Act or the Exchange Act), Exchange Notes in exchange for all Notes validly tendered and not withdrawn prior thereto in the Exchange OfferOffer and (v) use its commercially reasonable efforts to cause the Exchange Notes to bear the same CUSIP number as the Exchange Notes (as defined in the Indenture) that were issued in exchange for the $105,000,000 aggregate principal amount of its 9 7/8% Senior Secured Notes due 2011 that were previously issued under the Indenture on February 1, 2005. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation policy or interpretation currently prevailing applicable interpretations of the staff of the SEC, (ii) no action, suit 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 and the Subsidiary Guarantors to proceed with the Exchange Offer, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company Offer and (iii) all necessary governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary obtained for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) and (ii) the Collateral Agreements.
Appears in 1 contract
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Guarantor to) (i) no later than the Filing Date, prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to exchange the Holders of Notes for Exchange Notes guaranteed by the Guarantors which shall have terms substantially identical in all material respects to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their commercially reasonable its best efforts to cause the Exchange Offer Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date; provided, however, that without the consent of the Initial Purchaser, the Exchange Offer shall not be consummated prior to the six-month anniversary of the Closing Date, (iii) use their commercially reasonable its best efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their commercially reasonable its best efforts to issue on or prior to 30 days Business Days after the date on which the Exchange Registration Statement is declared effectiveEffectiveness Date, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes and the Private Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) and which in either case will provide that (i) the Exchange Notes will not be subject to the registration rights, transfer restrictions or Liquidated Damages provisions set forth in the Indenture, (ii) the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture and (iii) the Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in all the security granted by the Company pursuant to the Collateral AgreementsAgreements and in any Guarantee (as such terms are defined in the Indenture) on an equal and ratable basis.
(c) Interest on the Exchange Notes and Private Exchange Notes will accrue from (i) the later of (x) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or (y) if the Note is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (ii) if no interest has been paid on the Notes, from Issue Date. Each Exchange Note and Private Exchange Note shall bear interest at the rate set forth thereon.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to represent to the Company that at the time of the consummation of the Exchange Offer, (i) any Exchange Notes received by such Holder will be acquired in the ordinary course of its business, (ii) at the time of commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) such Holder is not an “affiliate” (as defined in Rule 405 of the Securities Act) of the Company or if such Holder is an affiliate such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchaser which shall contain all of the information that the SEC may require with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making activities or other trading activities (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the judgment of the Initial Purchaser, represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. 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 (the “Applicable Period”).
(f) If, upon consummation of the Exchange Offer, the Initial Purchaser holds any Notes acquired by it and having the status of an unsold allotment in the initial distribution, the Company (upon the written request from the Initial Purchaser) shall, simultaneously with the delivery of the Exchange Notes pursuant to the Exchange Offer, issue and deliver to the Initial Purchaser in exchange (the “Private Exchange”) for the Notes held by the Initial Purchaser, a like principal amount at maturity of debt securities of the Company, including guarantees relating thereto (issued under the same Indenture as the Exchange Notes) that are identical in all material respects to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (the “Private Exchange Notes”). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
(g) In connection with the Exchange Offer, the Company shall (and shall cause each Guarantor to):
(i) mail or cause to be mailed to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal (substantially in the form attached as an exhibit to the Exchange Offer Registration Statement) and any related documents;
(ii) keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice thereof is mailed to the Holders;
(iii) utilize the services of a depository for the Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all applicable laws.
(h) As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Company shall (and shall cause each Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer or the Private Exchange, as the case may be;
(ii) deliver or cause to be delivered to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount at maturity to the Notes of such Holder so accepted for exchange.
(i) If, (i) any change in law or in applicable interpretations thereof by the staff of the SEC would not permit the consummation of the Exchange Offer, (ii) the Exchange Offer is not consummated within 30 Business Days after the Effectiveness Date, (iii) the Initial Purchaser so requests with respect to the Notes (or the Private Exchange Notes) not eligible to be exchanged for Exchange Notes in the Exchange Offer and held by it following consummation of the Exchange Offer, or (iv) in the case of (A) any Holder not permitted to participate in the Exchange Offer, (B) any Holder participating in the Exchange Offer that receives Exchange Notes that may not be sold or transferred without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) or (C) any Participating Broker Dealer holds Notes acquired directly from the Company or one of its affiliates, then in each case the Company shall promptly deliver to the Holders and the Trustee notice thereof (the “Shelf Notice”) and shall as promptly as practicable and at its sole expense use its best efforts to file an Initial Shelf Registration Statement pursuant to Section 3.
Appears in 1 contract
Samples: Registration Rights Agreement (Landrys Restaurants Inc)
Exchange Offer. (a) Parent Each of Purchaser and the Company shall (and shall cause each other Guarantor to) (i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their commercially its reasonable best efforts to cause consummate the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but Offers in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of a manner that satisfies the Exchange Offer in accordance Condition as soon as practicable following the date of this Agreement, and Purchaser shall not prevent Target from complying with its terms, and (iv) commence obligations under the Exchange Offer and use their commercially reasonable efforts to issue on or prior to 30 days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any law or applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding Combination Agreement with respect to the Exchange Offers. Without limiting the generality of the foregoing, Purchaser shall, and shall cause its Subsidiaries and its and their respective officers and employees to, provide, and shall use reasonable best efforts to cause its Representatives (including legal and accounting advisors) to provide, in connection with the Exchange Offers, all reasonable cooperation requested by Company, including provision to the Company of information regarding Purchaser reasonably requested by Company. Company shall direct and control all communications and discussions regarding the Exchange Offers, including those with holders of Intelsat Notes, which shall be consistent with satisfying the Exchange Offer Condition. Purchaser shall not, and shall cause the its Subsidiaries and its and their respective Representatives not to, make any communications or have any discussions relating to the Transactions, the Exchange Offers or Company with the holders of Intelsat Notes without the prior written consent of Company; provided that (A) no written communications to be publicly disseminated or delivered to holders of Intelsat Notes generally by Company or any Company Subsidiary (the “Written Noteholder Communications”), including any other Exchange Offer Document, shall be so publicly disseminated or delivered without the prior written consent of Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed, (B) Company shall keep Purchaser reasonably apprised as to meetings and discussions with holders of Intelsat Notes, and a representative of PJT Partners LP shall, to the extent reasonably practicable, be permitted to observe or listen to any such discussions without actively participating (except as set forth on the following clause (C)), and (iiiC) all governmental approvals partners and employees of PJT Partners LP reasonably agreed to by Company shall have been obtained, which approvals the Company reasonably deems necessary be permitted to communicate Purchaser’s objectives at such meetings or discussions (for the consummation avoidance of doubt, only such meetings and discussions where Company or its Representatives are also present), provided that such communications shall be consistent with satisfying the Exchange OfferOffer Condition.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) and (ii) the Collateral Agreements.
Appears in 1 contract
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Guarantor to) (i) prepare and file with the SEC promptly after the date hereofSEC, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their its commercially reasonable efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their its commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their its commercially reasonable efforts to issue on or prior to 30 days 60 Business Days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) the Indenture or a trust indenture that is substantially identical to the Indenture (other than such changes as are necessary to comply with any requirements of applicable law or the SEC to effect or maintain the qualifications thereof under the TIA).
(c) Interest on the Exchange Notes will accrue from (i) the later of (x) the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or (y) if the Note is surrendered for exchange after the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (ii), if no interest has been paid on the Notes, from the Closing Date. Each Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to represent (i) that any Exchange Notes received by such Holder will be acquired in the ordinary course of its business, (ii) that at the time of the commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that if such Holder is an “affiliate” of the Company within the meaning of Rule 405 of the Securities Act, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer (as defined below), that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers, which shall contain all of the information that the SEC may require with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity and from whom the Company has received written notice that such broker-dealer will be a Participating Broker-Dealer in the applicable Exchange Offer (a “Participating Broker-Dealer”). Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its commercially reasonable efforts to keep the Exchange Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by Participating Broker-Dealers for such period of time as such Persons must comply with such requirements in order to resell the Exchange Notes; provided, that such period shall not exceed the lesser of 180 days and the date on which all Participating Broker Dealers have sold all Exchange Notes held by them (the “Applicable Period”).
(f) In connection with the Exchange Offer, the Company shall (and shall cause each Guarantor to):
(i) mail or cause to be mailed to each Holder of record a copy of the Prospectus forming part of the Exchange Registration Statement, together with an appropriate letter of transmittal (substantially in the form attached as an exhibit to the Exchange Offer Registration Statement) and any related documents;
(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 depository for the Exchange Offer with an address in the Borough of Manhattan, the City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York City time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all applicable laws.
(g) As soon as practicable after the close of the Exchange Offer, the Company shall (and shall cause each Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered pursuant to the Exchange Offer and not validly withdrawn;
(ii) deliver or cause to be delivered to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder validly tendering such Registrable Notes, Exchange Notes equal in principal amount to the Notes of such Holder so accepted for exchange.
(h) The Exchange Notes may be issued under (i) the Indenture or (ii) an indenture substantially identical to the Indenture (other than such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualifications qualification thereof under the TIA), which in either event will provide that the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture).
(i) If: (i) prior to the consummation of the Exchange Offer, the Holders of a majority in aggregate principal amount of Registrable Notes determine in their reasonable judgment that (A) upon the written advice of counsel that the Exchange Notes would not, upon receipt, be tradeable by the Holders thereof without restriction under the Securities Act and the Exchange Act and without material restrictions under applicable Blue Sky or state securities laws, or (B) the interests of the Holders under this Agreement, taken as a whole, would be materially adversely affected by the consummation of the Exchange Offer, and in the case of (A) or (B), notifies the Company in writing of such determination; (ii) any change in law or in applicable interpretations of the Collateral Agreementsstaff of the SEC would not permit the consummation of the Exchange Offer prior to the Effectiveness Date; (iii) subsequent to the consummation of the Exchange Offer, if any Initial Purchaser continues to hold any Notes for its own account, and such Initial Purchaser so requests; (iv) the Exchange Registration Statement is not declared effective on or prior to the Effectiveness Date for any reason; or (v) in the case of (A) any Holder not permitted by applicable law or SEC policy to participate in the Exchange Offer, (B) any Holder participating in the Exchange Offer that receives Exchange Notes that may not be sold without restriction under federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of Rule 405 of the Securities Act) or (C) any broker-dealer that holds Notes acquired by such broker-dealer directly from the Company or any of its affiliates and, in each such case contemplated by clause (iii) or this clause (v), such Holder notifies the Company in writing within 20 Business Days of the consummation of the Exchange Offer, then the Company shall promptly (and in any event within five Business Days of such notification) deliver to the Holders (or in the case of an occurrence of any event described in clause (v) of this Section 2(i), to any such Holder) and the Trustee notice thereof (the “Shelf Notice”) and shall as promptly as practicable thereafter file an Initial Shelf Registration pursuant to Section 3.
Appears in 1 contract
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Guarantor to) (i) prepare and file with the SEC promptly after the date hereofSEC, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their its commercially reasonable efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their its commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their its commercially reasonable efforts to issue on or prior to 30 days 60 Business Days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) the Indenture or a trust indenture that is substantially identical to the Indenture (other than such changes as are necessary to comply with any requirements of applicable law or the SEC to effect or maintain the qualifications thereof under the TIA).
(c) Interest on the Exchange Notes will accrue from (i) the later of (x) the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or (y) if the Note is surrendered for exchange after the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (ii), if no interest has been paid on the Notes, from August 15, 2015. Each Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to represent (i) that any Exchange Notes received by such Holder will be acquired in the ordinary course of its business, (ii) that at the time of the commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that if such Holder is an “affiliate” of the Company within the meaning of Rule 405 of the Securities Act, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer (as defined below), that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers, which shall contain all of the information that the SEC may require with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity and from whom the Company has received written notice that such broker-dealer will be a Participating Broker-Dealer in the applicable Exchange Offer (a “Participating Broker-Dealer”). Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its commercially reasonable efforts to keep the Exchange Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by Participating Broker-Dealers for such period of time as such Persons must comply with such requirements in order to resell the Exchange Notes; provided, that such period shall not exceed the lesser of 180 days and the date on which all Participating Broker Dealers have sold all Exchange Notes held by them (the “Applicable Period”).
(f) In connection with the Exchange Offer, the Company shall (and shall cause each Guarantor to):
(i) mail or cause to be mailed to each Holder of record a copy of the Prospectus forming part of the Exchange Registration Statement, together with an appropriate letter of transmittal (substantially in the form attached as an exhibit to the Exchange Offer Registration Statement) and any related documents;
(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 depository for the Exchange Offer with an address in the Borough of Manhattan, the City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York City time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all applicable laws.
(g) As soon as practicable after the close of the Exchange Offer the Company shall (and shall cause each Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered pursuant to the Exchange Offer and not validly withdrawn;
(ii) deliver or cause to be delivered to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder validly tendering such Registrable Notes, Exchange Notes equal in principal amount to the Notes of such Holder so accepted for exchange.
(h) The Exchange Notes may be issued under (i) the Indenture or (ii) an indenture substantially identical to the Indenture (other than such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualifications qualification thereof under the TIA), which in either event will provide that the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture).
(i) If: (i) prior to the consummation of the Exchange Offer, the Holders of a majority in aggregate principal amount of Registrable Notes determines in its or their reasonable judgment that (A) upon the advice of counsel that the Exchange Notes would not, upon receipt, be tradeable by the Holders thereof without restriction under the Securities Act and the Exchange Act and without material restrictions under applicable Blue Sky or state securities laws, or (B) the interests of the Holders under this Agreement, taken as a whole, would be materially adversely affected by the consummation of the Exchange Offer, and in the case of (A) or (B), notifies the Company in writing of such determination; (ii) any change in law or in applicable interpretations of the Collateral Agreementsstaff of the SEC would not permit the consummation of the Exchange Offer prior to the Effectiveness Date; (iii) subsequent to the consummation of the Exchange Offer, if any Initial Purchaser continues to hold any Notes for its own account, and such Initial Purchaser so requests; (iv) the Exchange Registration Statement is not declared effective on or prior to the Effectiveness Date for any reason; or (v) in the case of (A) any Holder not permitted by applicable law or SEC policy to participate in the Exchange Offer, (B) any Holder participating in the Exchange Offer that receives Exchange Notes that may not be sold without restriction under federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of Rule 405 of the Securities Act) or (C) any broker-dealer that holds Notes acquired by such broker-dealer directly from the Company or any of its affiliates and, in each such case contemplated by clause (iii) or this clause (v), such Holder notifies the Company in writing within 20 Business Days of the consummation of the Exchange Offer, then the Company shall promptly (and in any event within five Business Days of such notification) deliver to the Holders (or in the case of an occurrence of any event described in clause (v) of this Section 2(i), to any such Holder) and the Trustee notice thereof (the “Shelf Notice”) and shall as promptly as practicable thereafter file an Initial Shelf Registration pursuant to Section 3.
Appears in 1 contract
Samples: Registration Rights Agreement (Acadia Healthcare Company, Inc.)
Exchange Offer. In accordance with the terms of the Exchange and Registration Rights Agreement, dated May 31, 2001, among the Company, the Guarantor and X.X. Xxxxxx Securities Inc., Credit Suisse First Boston Corporation, Banc of America Securities LLC, Scotia Capital (aUSA) Parent Inc., BNY Capital Markets Inc. and RBC Dominion Securities Corporation (the Company shall (and shall cause each other Guarantor to) "REGISTRATION RIGHTS AGREEMENT"), if (i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a an exchange offer registration statement (the “Exchange Registration Statement”"EXCHANGE OFFER REGISTRATION STATEMENT") is not filed with the Commission on an appropriate form under or prior to 90 days after the Securities Act with respect to an offer Issue Date or the shelf registration statement (the “Exchange Offer”"SHELF REGISTRATION STATEMENT") to is not filed with the Holders of Notes to issue and deliver to such Holders, Commission on or before the Shelf Filing Date (as defined in exchange for the Notes, a like principal amount of Exchange NotesRegistration Rights Agreement), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to become or the Shelf Registration Statement is not declared effective as promptly as practicable within 180 days after the filing thereof, but in no event later than the Effectiveness Issue Date, (iii) use their commercially reasonable efforts the registered exchange offer (the "REGISTERED EXCHANGE OFFER") is not consummated on or prior to keep 210 days after the Issue Date, or (iv) the Shelf Registration Statement is filed and declared effective within 90 days after the Issue Date but shall thereafter cease to be effective (at any time that the Company is obligated to maintain the effectiveness thereof) without being succeeded within 30 days by an additional registration statement filed and declared effective (each such event referred to in clauses (i) through (iv), a "REGISTRATION DEFAULT"), the Company will be obligated to pay liquidated damages to each Holder, during the period of one or more such Registration Defaults, in an amount equal to $0.192 per week per $1,000 principal amount of Transfer Restricted Securities held by such Holder until (i) the applicable Registration Statement is filed, (ii) the Exchange Offer Registration Statement effective until or the consummation Shelf Registration Statement, as the case may be, is declared effective, (iii) the Registered Exchange Offer is consummated or (iv) the Shelf Registration Statement again becomes effective, as the case may be. Following the cure of all Registration Defaults, the accrual of liquidated damages will cease. Notwithstanding any other provision of the Indenture or this Security: (i) accrued and unpaid interest on the Initial Securities being exchanged in the Exchange Offer shall be due and payable on the next Interest Payment Date for the Exchange Securities following the Exchange Offer and shall be paid to the Holder on the relevant record date of the Exchange Securities issued in respect of the Initial Securities being exchanged, and (ii) interest on the Initial Securities being exchanged in the Exchange Offer shall cease to accrue on the date of completion of the Exchange Offer and interest on the Exchange Securities to be issued in accordance with its terms, and (iv) commence the Exchange Offer and use their commercially reasonable efforts to issue on or prior to 30 days after shall accrue from the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any law or applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation completion of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) and (ii) the Collateral Agreements.
Appears in 1 contract
Exchange Offer. (a) Parent and Unless the Exchange Offer (as defined below) would not be permitted by applicable laws or a policy or interpretation of the staff of the SEC, the Company shall (and shall cause each other Guarantor to) )
(i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Offer Registration Statement”) on an appropriate registration form under the Securities Act with respect to an offer (the “Exchange Offer”) to exchange the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their its commercially reasonable best efforts to cause the Exchange Offer Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Effective Date, (iii) use their its commercially reasonable best efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their its commercially reasonable best efforts to issue on or prior to 30 50 days after the effective date on which of the Exchange Offer Registration Statement is declared effectiveStatement, Exchange Notes in exchange for all Notes validly tendered and not withdrawn prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than customary conditions as agreed to in writing by the Majority Backstop Purchasers and that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) which in either case will provide that (i) the Exchange Notes will not be subject to the transfer restrictions or additional interest provisions set forth in the Indenture and (ii) the Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in all the security granted by the Company pursuant to the Collateral AgreementsDocuments and in any Guarantee (as such terms are defined in the Indenture) on an equal and ratable basis.
(c) Interest on the Exchange Notes will accrue from (i) the later of (x) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or (y) if the Note is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (ii) if no interest has been paid on the Notes, from the Issue Date. Each Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to represent to the Company that at the time of the consummation of the Exchange Offer, (i) any Exchange Notes received by such Holder will be acquired in the ordinary course of its business, (ii) at the time of commencement of the Exchange Offer such Holder has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) such Holder is not an affiliate of the Company or if such Holder is an affiliate such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer (as defined below) that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Majority Backstop Purchasers which shall contain all of the information that the SEC requires with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making activities or other trading activities (a “Participating Broker-Dealer”). Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its commercially reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all Persons 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 (the “Applicable Period”).
(f) In connection with the Exchange Offer, the Company shall (and shall cause each Guarantor to):
(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 (substantially in the form attached as 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 (or longer if required by applicable law) after the date notice thereof is mailed to the Holders;
(iii) utilize the services of a depository for the Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate thereof;
(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 applicable laws.
(g) As soon as practicable after the close of the Exchange Offer, the Company shall (and shall cause each Guarantor to):
(i) accept for exchange all Notes validly tendered and not withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Notes or Exchange Notes, as the case may be, equal in principal amount at maturity to the Notes of such Holder so accepted for exchange.
(h) If, (i) because of any change in law or in applicable interpretations thereof by the staff of the SEC the Company is not permitted to effect an Exchange Offer, (ii) for any other reason the Exchange Offer Registration Statement is not declared effective on or prior to the Effective Date, or the Exchange Offer is not consummated within 50 days after the effective date of the Exchange Offer Registration Statement, (iii) any Backstop Purchaser so requests with respect to the Notes not eligible to be exchanged for Exchange Notes in the Exchange Offer and held by it or any affiliate thereof (including any such affiliated Holders listed on Annex II) following consummation of the Exchange Offer, or (iv) in the case of (A) any Holder not permitted to participate in the Exchange Offer, (B) any Backstop Purchaser or any affiliate thereof (including any such affiliated Holders listed on Annex II) participating in the Exchange Offer that receives Registrable Notes or does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws or (C) any Participating Broker-Dealer holds Notes acquired directly from the Company or one of its affiliates, and such Holder or Participating Broker-Dealer notifies the Company of the same within six months of the Exchange Offer, then in each case the Company shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall as promptly as practicable and at its sole expense file an Initial Shelf Registration Statement pursuant to Section 3.
Appears in 1 contract
Samples: Registration Rights Agreement (Aventine Renewable Energy Holdings Inc)
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Guarantor to) (i) prepare and file with the SEC promptly after the date hereofSEC, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their its commercially reasonable efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their its commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their its commercially reasonable efforts to issue on or prior to 30 days 60 Business Days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) the Indenture or a trust indenture that is substantially identical to the Indenture (other than such changes as are necessary to comply with any requirements of applicable law or the SEC to effect or maintain the qualifications thereof under the TIA).
(c) Interest on the Exchange Notes will accrue (i) from the later of (x) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or (y) if the Note is surrendered for exchange after the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (ii) if no interest has been paid on the Notes, from the Closing Date. Each Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to represent (i) that any Exchange Notes received by such Holder will be acquired in the ordinary course of its business, (ii) that at the time of the commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that if such Holder is an “affiliate” of the Company within the meaning of Rule 405 of the Securities Act, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer (as defined below), that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers, which shall contain all of the information that the SEC may require with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity and from whom the Company has received written notice that such broker-dealer will be a Participating Broker-Dealer in the applicable Exchange Offer (a “Participating Broker-Dealer”). Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its commercially reasonable efforts to keep the Exchange Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by Participating Broker-Dealers for such period of time as such Persons must comply with such requirements in order to resell the Exchange Notes; provided, that such period shall not exceed the lesser of 180 days and the date on which all Participating Broker Dealers have sold all Exchange Notes held by them (the “Applicable Period”).
(f) In connection with the Exchange Offer, the Company shall (and shall cause each Guarantor to):
(i) mail or cause to be mailed to each Holder of record a copy of the Prospectus forming part of the Exchange Registration Statement, together with an appropriate letter of transmittal (substantially in the form attached as an exhibit to the Exchange Offer Registration Statement) and any related documents;
(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 depository for the Exchange Offer with an address in the Borough of Manhattan, the City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York City time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all applicable laws.
(g) As soon as practicable after the close of the Exchange Offer the Company shall (and shall cause each Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered pursuant to the Exchange Offer and not validly withdrawn;
(ii) deliver or cause to be delivered to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder validly tendering such Registrable Notes, Exchange Notes equal in principal amount to the Notes of such Holder so accepted for exchange.
(h) The Exchange Notes may be issued under (i) the Indenture or (ii) an indenture substantially identical to the Indenture (other than such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualifications qualification thereof under the TIA), which in either event will provide that the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture).
(i) If: (i) prior to the consummation of the Exchange Offer, the Holders of a majority in aggregate principal amount of Registrable Notes determines in its or their reasonable judgment that (A) upon the advice of counsel that the Exchange Notes would not, upon receipt, be tradeable by the Holders thereof without restriction under the Securities Act and the Exchange Act and without material restrictions under applicable Blue Sky or state securities laws, or (B) the interests of the Holders under this Agreement, taken as a whole, would be materially adversely affected by the consummation of the Exchange Offer, and in the case of (A) or (B), notifies the Company in writing of such determination; (ii) any change in law or in applicable interpretations of the Collateral Agreementsstaff of the SEC would not permit the consummation of the Exchange Offer prior to the Effectiveness Date; (iii) subsequent to the consummation of the Exchange Offer, if any Initial Purchaser continues to hold any Notes for its own account, and such Initial Purchaser so requests; (iv) the Exchange Registration Statement is not declared effective on or prior to the Effectiveness Date for any reason; or (v) in the case of (A) any Holder not permitted by applicable law or SEC policy to participate in the Exchange Offer, (B) any Holder participating in the Exchange Offer that receives Exchange Notes that may not be sold without restriction under federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of Rule 405 of the Securities Act) or (C) any broker-dealer that holds Notes acquired by such broker-dealer directly from the Company or any of its affiliates and, in each such case contemplated by clause (iii) or this clause (v), such Holder notifies the Company in writing within 20 Business Days of the consummation of the Exchange Offer, then the Company shall promptly (and in any event within five Business Days of such notification) deliver to the Holders (or in the case of an occurrence of any event described in clause (v) of this Section 2(i), to any such Holder) and the Trustee notice thereof (the “Shelf Notice”) and shall as promptly as practicable thereafter file an Initial Shelf Registration pursuant to Section 3.
Appears in 1 contract
Samples: Registration Rights Agreement (Acadia Healthcare Company, Inc.)
Exchange Offer. (a) Parent and the The Company shall (and shall cause each other Guarantor to) (i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the Securities Act with respect to an a proposed offer (the “"Exchange Offer”") to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like aggregate principal amount of Exchange NotesSecurities, (ii) use their commercially reasonable its best efforts to cause the Exchange Offer Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer in accordance with pursuant to its terms, and (iv) unless the Exchange Offer would not be permitted by a policy of the SEC, commence the Exchange Offer and use their commercially reasonable its best efforts to issue issue, on or prior to 30 days Business Days after the date on which the Exchange Offer Registration Statement is declared effective, Exchange Notes Securities in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) that the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, SEC and (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offeras otherwise expressed herein.
(b) The Exchange Notes Securities shall be issued under, and entitled to the benefits of, (i) 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 qualifications qualification thereof under the TIA).
(c) In connection with the Exchange Offer, 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 that is an exhibit to the Exchange Offer Registration Statement and related documents;
(ii) keep the Collateral AgreementsExchange 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 depository 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 Company 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 Private Exchange Security will accrue (or principal will accrete, as applicable) from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes. Each Exchange Security and Private Exchange Security shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(f) The Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled "Plan of Distribution," containing a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Securities received by such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"). Such "Plan of Distribution" section shall also allow the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including (without limitation) all Participating BrokersDealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Securities. The Company shall use its best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirement of the Securities Act for such period of time as such Persons must comply with such requirements in order to resell the Exchange Securities; provided that such period shall not exceed 180 days after consummation of the Exchange Offer (as such period may be extended pursuant to the last paragraph of Section 6 (the "Applicable Period").
Appears in 1 contract
Samples: Registration Rights Agreement (Transamerican Refining Corp)
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Subsidiary Guarantor to) (i) use commercially reasonable efforts to prepare and file with the SEC promptly after the date hereof, but in no event later than hereof and by the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their commercially reasonable efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than thereof and on or before the Effectiveness Date, (iii) use their commercially reasonable its best efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their commercially reasonable its best efforts to issue on or prior to 30 days Business Days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) and (ii) the Collateral Agreements.
(c) Interest on the Exchange Notes and Private Exchange Notes will accrue (i) from the later of (A) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor, or (B) if the 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 such exchange and as to which interest was paid, the date of such interest payment date; or (ii) if no interest has been paid on the Notes, from the Issue Date. Each Exchange Note and Private Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to represent (i) that any Exchange Notes received by it will be acquired in the ordinary course of its business, (ii) that at the time of the commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that if such Holder is an “affiliate” of the Company within the meaning of Rule 405 of the Securities Act, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer (as defined below), that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Subsidiary Guarantor to) include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchaser which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the judgment of the Initial Purchaser, represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its best efforts to keep the Exchange 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 that such period shall not exceed the lesser of 180 days and the date on which all persons subject to the prospectus delivery requirements of the Securities Act have sold all Exchange Notes held by them (the “Applicable Period”).
(f) If, upon consummation of the Exchange Offer, the Initial Purchaser holds any Notes acquired by it and having the status of an unsold allotment in the initial distribution, the Company (upon the written request from the Initial Purchaser) shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchaser, in exchange (the “Private Exchange”) for the Notes held by the Initial Purchaser, a like principal amount of Notes that are identical to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (the “Private Exchange Notes”) (and which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
(g) In connection with the Exchange Offer, the Company shall (and shall cause each Subsidiary Guarantor to):
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Registration Statement, together with an appropriate letter of transmittal that is an exhibit to the Exchange 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 depository for the Exchange Offer with an address in the Borough of Manhattan, the City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all applicable laws.
(h) As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Company shall (and shall cause each Subsidiary Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered pursuant to the Exchange Offer or the Private Exchange, as the case may be, and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange.
(i) The Exchange Notes and the Private Exchange Notes may be issued under (i) the Indenture or (ii) an indenture 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), which in either event will provide that the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture, that the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in all the security granted by the Company pursuant to the Collateral Agreements and in any Subsidiary Guarantee (as such terms are defined in the Indenture) on an equal and ratable basis.
(j) If: (i) prior to the consummation of the Exchange Offer, the Holders of a majority in aggregate principal amount of Registrable Notes determines in its or their reasonable judgment that (A) the Exchange Notes would not, upon receipt, be tradeable by the Holders thereof without restriction under the Securities Act and the Exchange Act and without material restrictions under applicable Blue Sky or state securities laws, or (B) the interests of the Holders under this Agreement, taken as a whole, would be materially adversely affected by the consummation of the Exchange Offer; (ii) applicable interpretations of the staff of the SEC would not permit the consummation of the Exchange Offer prior to the Effectiveness Date; (iii) subsequent to the consummation of the Private Exchange, any Holder of Private Exchange Notes so requests; (iv) the Exchange Offer is not consummated within 30 Business Days from the date the Exchange Registration Statement was declared effective; or (v) in the case of (A) any Holder not permitted by applicable law or SEC policy to participate in the Exchange Offer, (B) any Holder participating in the Exchange Offer that receives Exchange Notes that may not be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) or (C) any broker-dealer that holds Notes acquired directly from the Company or any of its affiliates and, in each such case contemplated by this clause (v), such Holder notifies the Company within six months of consummation of the Exchange Offer, then the Company shall promptly (and in any event within five Business Days) deliver to the Holders (or in the case of an occurrence of any event described in clause (v) of this Section 2(j), to any such Holder) and the Trustee notice thereof (the “Shelf Notice”) and shall as promptly as possible thereafter (but in no event more than 45 days after delivery of the Shelf Notice) file an Initial Shelf Registration pursuant to Section 3.
Appears in 1 contract
Exchange Offer. (a) Parent and To the extent not prohibited by any applicable law or applicable interpretation of the staff of the SEC, the Company shall (and shall cause each other Guarantor toA) use its reasonable best efforts to prepare and, on or prior to 45 days after the date of original issuance of the Notes (i) prepare and the "Issue Date"), file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form Statement under the Securities Act with respect to an offer (by the “Exchange Offer”) Company to the Holders holders of the Notes to issue and deliver to such Holdersholders, in exchange for the Notes, a like principal amount of Exchange Notes, (iiB) use their commercially its reasonable best efforts to cause the Exchange Registration Statement relating to become the Exchange Offer to be declared effective as promptly as practicable by the SEC under the Securities Act on or prior to 90 days after the filing thereof, but in no event later than the Effectiveness Issue Date, and (iiiC) use their commercially reasonable efforts to keep promptly following the declaration of the effectiveness of the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its termsStatement, and (iv) commence the Exchange Offer and use their commercially its reasonable best efforts to issue issue, on or prior to 30 days after the date on which Consummation Date, the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in into the Exchange Offer. The offer and sale of the Exchange Notes pursuant to the Exchange Offer shall be registered pursuant to the Securities Act on an appropriate form (the "Exchange Registration Statement") and duly registered or qualified under all applicable state-securities or Blue Sky laws and will comply with all applicable tender offer rules and regulations under the Exchange Act and state securities or Blue Sky laws. The Exchange Offer shall not be subject to any conditionscondition, other than that (i) the Exchange Offer does not violate any applicable law or applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit or proceeding . No securities shall have been instituted or threatened be included in any court or by any governmental agency which might materially impair the ability of the Company to proceed with the Exchange Offer, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of Registration Statement other than the Exchange OfferNotes.
(b) The Company may require each holder of Notes, as a condition to its participation in the Exchange Offer, to represent and warrant to the Company and its counsel in writing (which may be contained in the applicable letter of transmittal) that at the time of the consummation of the Exchange Offer (i) any Exchange Notes received by such holder will be acquired in the ordinary course of its business, (ii) such holder will have no arrangement or understanding with any person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes, (iii) such holder is not an Affiliate of the Company, or if it is an Affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act, to the extent applicable and such holder has full power and authority to tender, sell, assign and transfer the Notes and that upon consummation of the Exchange Offer the Company will acquire good, marketable and unencumbered title to the Notes, free and clear of all security interests, liens, restrictions, charges, encumbrances, conditional sales agreements or other obligations relating to the sale or transfer of the Notes.
(c) If, prior to consummation of the Exchange Offer, any Initial Purchaser holds any Notes acquired by it and having, or which are reasonably likely to be determined to have, based on the written advice of Special Counsel, the status of an unsold allotment in the initial distribution, or any other holder of Notes is not entitled, as a matter of law or based on an interpretation or position of the staff of the SEC, to participate in the Exchange Offer, the Company, upon the request of such Initial Purchaser or any such holder, shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to such Initial Purchaser and any such holder, in exchange (the "Private Exchange") for such Notes held by such Initial Purchaser and any such holder, a like principal amount of debt securities of the Company that are identical in all material respects to the Exchange Notes (the "Private Exchange Notes") (and which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
(d) Unless the Exchange Offer would not be issued underpermitted by any applicable law or interpretation thereof of the staff of the SEC, the Company shall deliver, or cause to be delivered, the Exchange Offer Prospectus and entitled appropriate accompanying documents, including appropriate letters of transmittal, to the benefits ofeach holder of Notes providing, in addition to such other disclosures as are required by applicable law:
(i) that the Indenture or a trust indenture Exchange Offer is being made pursuant to this Agreement and 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 qualifications thereof under the TIA) and all Notes validly tendered will be accepted for exchange;
(ii) the Collateral Agreementsdate of acceptance for exchange (the "Exchange Date"), which date shall in no event be later than the Consummation Date (unless otherwise required by applicable law);
(iii) that a holder of a Note electing to have a Note exchanged pursuant to the Exchange Offer will be required to surrender such Note, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the Exchange Date; and
(iv) that holders of Notes that do not validly tender all such securities pursuant to the Exchange Offer may no longer have any registration rights hereunder with respect to Notes not validly tendered. Promptly after the Exchange Date, the Company shall:
(i) accept for exchange all Notes or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Notes or portions thereof so accepted for exchange by the Company, and issue, cause the Trustee under the Indenture (or the indenture pursuant to which the Exchange Notes are issued) to authenticate, and deliver, or cause to be delivered, to each holder of Notes, Exchange Notes equal in principal amount to the principal amount of the Notes surrendered by such holder.
(e) The Company and the Initial Purchasers acknowledge that the staff of the SEC has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a "Participating Broker-Dealer") may be deemed to be an "underwriter", within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that it is the SEC staff's position that if the Prospectus contained in the Exchange Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act.
Appears in 1 contract
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Guarantor to) )
(i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate registration form under the Securities Act with respect to an offer (the “Exchange Offer”) to exchange the Holders of Notes to issue and deliver to such Holders, in exchange for the Exchange Notes, a like principal amount of Exchange which shall have terms substantially identical in all material respects to the Notes, (ii) use their commercially its reasonable best efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially its reasonable best efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their commercially its reasonable best efforts to issue on or prior to 30 45 days after the date on which the Exchange Registration Statement is declared effectiveEffectiveness Date, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes and the Private Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) which in either case will provide that (i) the Exchange Notes will not be subject to the transfer restrictions or additional interest provisions set forth in the Indenture, (ii) the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture and (iii) the Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in all the security granted by the Company pursuant to the Collateral Agreements and in any Guarantee (as such terms are defined in the Indenture) on an equal and ratable basis.
(c) Interest on the Exchange Notes and Private Exchange Notes will accrue from (i) the later of (x) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or (y) if the Note is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (ii) if no interest has been paid on the Notes, from the Issue Date. Each Exchange Note and Private Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to represent to the Company that at the time of the consummation of the Exchange Offer, (i) any Exchange Notes received by such Holder will be acquired in the ordinary course of its business, (ii) at the time of commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) such Holder is not an “affiliate” (as defined in Rule 405 of the Securities Act) of the Company or if such Holder is an affiliate such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchaser which shall contain all of the information that the SEC may require with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making activities or other trading activities (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the judgment of the Initial Purchaser, represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its reasonable best efforts to keep the Exchange 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 the period ending on the earlier of (i) 180 days from the date the Exchange Offer Registration Statement is declared effective and (ii) the Collateral Agreementsdate on Which such Participating Broker-Dealer is no longer required to deliver a prospectus in connection with market-making or other trading activities (the “Applicable Period”).
(f) If, upon consummation of the Exchange Offer, the Initial Purchaser holds any Notes acquired by it and having the status of an unsold allotment in the initial distribution, the Company (upon the written request from the Initial Purchaser) shall, simultaneously with the delivery of the Exchange Notes pursuant to the Exchange Offer, issue and deliver to the Initial Purchaser in exchange (the “Private Exchange”) for the Notes held by the Initial Purchaser, a like principal amount at maturity of Senior Secured Notes (issued under the same Indenture as the Exchange Notes) that are identical in all material respects to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (the “Private Exchange Notes”). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
(g) In connection with the Exchange Offer, the Company shall (and shall cause each Guarantor to):
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Registration Statement, together with an appropriate letter of transmittal (substantially in the form attached as an exhibit to the Exchange Registration Statement) and any related documents;
(ii) keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice thereof is mailed to the Holders;
(iii) utilize the services of a depository for the Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply with all applicable laws.
(h) As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Company shall (and shall cause each Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered and not withdrawn pursuant to the Exchange Offer or the Private Exchange, as the case may be;
(ii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount at maturity to the Notes of such Holder so accepted for exchange.
(i) If, (i) any change in law or in applicable interpretations thereof by the staff of the SEC would not permit the consummation of the Exchange Offer, (ii) for any other reason the Exchange Registration Statement is not declared effective on or prior to the Effectiveness Date, or the Exchange Offer is not consummated within 45 days after the Effectiveness Date, (iii) the Initial Purchaser so requests with respect to the Notes (or the Private Exchange Notes) not eligible to be exchanged for Exchange Notes in the Exchange Offer and held by it following consummation of the Exchange Offer, or (iv) in the case of (A) any Holder not permitted to participate in the Exchange Offer, (B) any Holder participating in the Exchange Offer that receives Exchange Notes that may not be sold or transferred without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) or (C) any Participating Broker Dealer holds Notes acquired directly from the Company or one of its affiliates and, in each case contemplated by this clause (iv), such Holder notifies the Company within two months of consummation of the Exchange Offer, then in each case the Company shall promptly (and in any event within ten Business Days of such notification) deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall as promptly as practicable and at its sole expense use its reasonable best efforts to thereafter file an Initial Shelf Registration Statement pursuant to Section 3.
Appears in 1 contract
Samples: Registration Rights Agreement (Broadview Networks Holdings Inc)
Exchange Offer. (a) Parent and To the Company shall (and shall cause each other Guarantor to) (i) prepare and file with extent not prohibited by any applicable law or applicable interpretations of the SEC promptly after staff of the date hereofSEC, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to any Notes, if any, the Issuer shall use its commercially reasonable efforts to (X) cause to be filed and to become effective, on or prior to the Effectiveness Date, an Exchange Offer Registration Statement covering an offer (the “Exchange Offer”) to the Holders to exchange all the Transfer Restricted Notes of each Series of Notes to issue and deliver to such Holders, in exchange for the Notes, a like aggregate principal amount of Exchange NotesNotes of such Series, (iiY) use their commercially reasonable efforts to cause the Exchange have such Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement remain effective until the consummation of the applicable Exchange Offer in accordance with its terms, and (ivZ) with respect to each Series of Notes, commence the such Exchange Offer and use their commercially reasonable efforts to issue issue, on or prior to 30 days the 30th Business Day after the date on which the such Exchange Offer Registration Statement is declared effectiveeffective by the SEC, Exchange Notes of the applicable Series of Notes in exchange for all Transfer Restricted Notes of such Series of Notes validly tendered prior thereto in, and in accordance with the terms of, such Exchange Offer.
(b) The Issuer shall, for the benefit of the Holders, at the Issuer’s cost, commence each Exchange Offer, if any, by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder of the applicable Series of Notes stating, in addition to such other disclosures as are required by applicable law, substantially the following:
i. that the Exchange Offer is being made pursuant to this Agreement and that all Transfer Restricted Notes of the applicable Series of Notes validly tendered and not properly withdrawn will be accepted for exchange;
ii. the dates of acceptance for exchange (which shall be a period of at least 20 Business Days from the date such notice is mailed) (the “Exchange Dates”);
iii. that any Transfer Restricted Notes of the applicable Series of Notes not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;
iv. that any Holder electing to have a Transfer Restricted Note of the applicable Series of Notes exchanged pursuant to the Exchange Offer will be required to
(A) surrender such Transfer Restricted Note, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the Depositary, in each case prior to the close of business on the last Exchange Date; and
v. that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Transfer Restricted Notes delivered for exchange and a statement that such Holder is withdrawing its election to have such Transfer Restricted Notes exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the Depositary.
(c) As a condition to participating in the Exchange Offer a Holder will be required to represent and warrant to the Issuer that (i) it is not an affiliate of the Issuer within the meaning of Rule 405 under the 1933 Act, or if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the 1933 Act to the extent applicable, (ii) any Exchange Notes to be received by such Holder will be acquired in the ordinary course of its business, (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 the Exchange Notes, (iv) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Transfer Restricted Notes acquired as a result of market-making or other trading activities, then such broker-dealer will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Notes, and (v) it has no arrangements or understandings with any Person to participate in the distribution (within the meaning of the Securities Act) of the Transfer Restricted Notes or the Exchange Notes in violation of the provisions of the Securities Act.
(d) With respect to each Series, the Exchange Notes of such Series, if any, 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 which shall provide that the Exchange Notes of such Series shall not be subject to the transfer restrictions set forth in the Indenture. The Exchange Notes of a Series and the Notes of the same Series shall vote and consent together on all matters as one class and none of the Exchange Notes or the Notes of such Series will have the right to vote or consent as a separate class on any matter.
(e) As soon as practicable after the last Exchange Date, the Issuer shall:
i. accept for exchange all Transfer Restricted Notes of the applicable Series validly tendered and not validly withdrawn pursuant to the Exchange Offer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
ii. deliver, or cause to be delivered, to the Trustee for cancellation all Transfer Restricted Notes of the applicable Series or portions thereof so accepted for exchange; and
iii. with respect to each Series, issue and cause the Trustee promptly to authenticate and deliver Exchange Notes of the corresponding Series to each Holder of Transfer Restricted Notes of such Series so accepted for exchange Exchange Notes of the same Series in a principal amount equal to the principal amount of the Transfer Restricted Notes of such Series of such Holder so accepted for exchange.
(f) With respect to each Series, interest on each Exchange Note, including Additional Interest, will accrue (i) from the later of (x) the last date on which interest was paid on the Transfer Restricted Notes of such Series surrendered in exchange therefor or (y) if the Transfer Restricted Notes of such Series are surrendered for exchange on a date in a period which includes the record date for an interest payment date on such Series to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (ii) if no interest has been paid on the Transfer Restricted Notes of such Series, from the date of issuance.
(g) The Issuer shall use its commercially reasonable efforts to complete each Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with each Exchange Offer. The Each Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or applicable rule, regulation or interpretation interpretations of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company Exchange Offer and (iii) all governmental approvals shall have been obtained, which approvals obtained that the Company reasonably Issuer deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) and (ii) the Collateral Agreements.
Appears in 1 contract
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy or currently prevailing applicable interpretations of the staff of the SEC, the Company shall (and shall cause each other Subsidiary Guarantor to) (i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an a proposed offer (the “Exchange Offer”) to the Holders of Notes who are not prohibited by law or a policy or currently prevailing applicable interpretations of the SEC from participating in the Exchange Offer to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their its commercially reasonable efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their its commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) use its commercially reasonable efforts to commence the Exchange Offer and use their commercially reasonable efforts to issue on or prior to 30 days Business Days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes validly tendered and not withdrawn prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation policy or interpretation currently prevailing applicable interpretations of the staff of the SEC, (ii) no action, suit 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 and the Subsidiary Guarantors to proceed with the Exchange Offer, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company Offer and (iii) all necessary governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary obtained for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) and (ii) the Collateral Agreements.
(c) Interest on the Exchange Notes and Private Exchange Notes will accrue from the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes. Each Exchange Note and Private Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to represent in writing to the Company and the Subsidiary Guarantors, prior to the time of the consummation of the Exchange Offer, (i) that any Exchange Notes received by it will be acquired in the ordinary course of its business, (ii) that at the time of the commencement and consummation of the Exchange Offer, such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that such Holder is not an “affiliate” (as defined in Rule 405 of the Securities Act) of the Company and, if such Holder is an “affiliate” of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, the distribution of the Notes and (v) if such Holder is a Participating Broker-Dealer, that it will comply with the applicable prospectus delivery requirements of the Securities Act in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Subsidiary Guarantor to) include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchaser which shall contain (i) a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity (a “Participating Broker-Dealer”) and (ii) all other information with respect to such sales by such Participating Broker-Dealers that the SEC may require in order to permit such sales pursuant thereto. Such “Plan of Distribution” section shall also allow, to the extent and in the manner permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its commercially reasonable efforts to keep the Exchange 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 that such period shall not exceed the lesser of 180 days and the date on which all Persons subject to the prospectus delivery requirements of the Securities Act have sold all Exchange Notes held by them (the “Applicable Period”).
(f) If, upon consummation of the Exchange Offer, the Initial Purchaser holds any Notes acquired by it and having the status of an unsold allotment in the initial distribution of the Notes, the Company (upon the written request from the Initial Purchaser) shall, no later than the earlier of (i) 30 days after the delivery of the Exchange Notes in the Exchange Offer and (ii) the declaration of effectiveness by the SEC of a Registration Statement covering the resale of all Private Exchange Notes to be issued and delivered as described in this sentence, issue and deliver to the Initial Purchaser, in exchange (the “Private Exchange”) for the Notes held by the Initial Purchaser, a like principal amount of Senior Secured Notes that are substantially identical to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (the “Private Exchange Notes”). The Company shall use all reasonable efforts to cause the Private Exchange Notes to bear the same CUSIP number as the Exchange Notes.
(g) In connection with the Exchange Offer, the Company shall (and shall cause each Subsidiary Guarantor to):
(i) Mail, or cause to be mailed to each Holder of record a copy of the Prospectus forming part of the Exchange 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 depository for the Exchange Offer with an address in the Borough of Manhattan, the City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all applicable laws.
(h) As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Company shall (and shall cause each Subsidiary Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered pursuant to the Exchange Offer or the Private Exchange, as the case may be, and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder validly tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided, that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Exchange Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement.
(i) The Exchange Notes and the Private Exchange Notes may be issued under (i) the Indenture or (ii) an indenture 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), which in either event will provide that the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture, that the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in all the security granted by the Company pursuant to the Collateral Agreements and in any Subsidiary Guarantee (as such terms are defined in the Indenture) on an equal and ratable basis.
(j) If: (i) prior to the consummation of the Exchange Offer, the Holders of a majority in aggregate principal amount of Registrable Notes determines in its or their reasonable judgment that the Exchange Notes would not, upon receipt, be tradeable by the Holders thereof without restriction under the Securities Act and the Exchange Act and without material restrictions under applicable Blue Sky or state securities laws; (ii) because of any change in law or currently prevailing applicable interpretations of the staff of the SEC the Company determines upon advice of outside counsel that it is not permitted to consummate the Exchange Offer prior to the Effectiveness Date; (iii) subsequent to the consummation of the Private Exchange, any Holder of Private Exchange Notes so requests; (iv) the Exchange Offer is not consummated within 30 Business Days from the date the Exchange Registration Statement was declared effective; or (v) in the case of (A) any Holder not permitted by applicable law or SEC policy to participate in the Exchange Offer, (B) any Holder participating in the Exchange Offer that receives Exchange Notes that may not be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) or (C) any broker-dealer that holds Notes acquired directly from the Company or any of its affiliates and, in each such case contemplated by this clause (v), such Holder notifies the Company (1) within six months of consummation of the Exchange Offer in the case of a Holder described in subsection (C) of this clause (v) or (2) as soon as is reasonably practicable and in any event within 120 days of consummation of the Exchange Offer in the case of a Holder described in subsection (A) or (B) of this clause (v), then the Company shall promptly (and in any event within ten Business Days) deliver to the Holders (or in the case of an occurrence of any event described in clause (iii) or (v) of this Section 2(j), to any such Holder) and the Trustee notice thereof (the “Shelf Notice”) and shall as promptly as possible thereafter (but in no event later than 30 days after delivery of the Shelf Notice) file an Initial Shelf Registration pursuant to Section 3.
Appears in 1 contract
Samples: Registration Rights Agreement (Edgen Louisiana CORP)
Exchange Offer. (a) Parent and Unless the Company Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall (and shall cause each other Guarantor to) (i) prepare and use their commercially reasonable efforts to file with the SEC promptly after (within such time as to comply with the date hereof, but in no event later than requirements of the Filing Date, last sentence of this paragraph) a registration statement Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form under the Securities Act with respect to an a registered offer (the “Exchange Offer”) to exchange any and all of the Holders Registrable Notes for a like aggregate principal amount of Notes debt securities of the Company (the “Exchange Notes”), that are identical in all material respects to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of except that (i) the Exchange NotesNotes shall contain no restrictive legend thereon, (ii) subject to compliance herewith, the Exchange Notes shall not be subject to any increase in annual interest rate as set forth in Section 4(a) hereof and (iii) interest thereon shall accrue from the last date on which interest was paid on the Notes or, if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. Each Issuer shall (x) use their its commercially reasonable efforts to cause the Exchange Offer Registration Statement to become be declared effective as promptly as practicable under the Securities Act; (y) keep the Exchange Offer open for at least 20 Business Days (or longer if required by applicable law) after the filing date that notice of the Exchange Offer is mailed to Holders; and (z) use its commercially reasonable efforts to consummate the Exchange Offer on or prior to the 395th day following the Issue Date (or if such 395th day is not a Business Day, the next succeeding Business Day). Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in the distribution of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of any Issuer or, if it is an affiliate of any Issuer, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have its Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; (v) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is prohibited by any law or policy of the SEC from participating in the Exchange Offer; and (vi) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers; provided, however, that the Issuers shall have no further obligation to register Registrable Notes, or file any Registration Statement in respect thereof, but in no event later (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to this Agreement. No securities other than the Effectiveness DateExchange Notes shall be included in the Exchange Offer Registration Statement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (iiias defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. Each of the Issuers shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Company, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until Offer open for not less than 20 Business Days after the consummation date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in accordance the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with its termsall applicable laws, rules and (iv) commence regulations. As soon as practicable after the close of the Exchange Offer and use their commercially reasonable efforts the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to issue on or prior to 30 days after the date on which the Exchange Registration Statement is declared effectiveOffer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, a principal amount of Exchange Notes or Private Exchange Notes, as the case may be, equal in exchange principal amount to the Notes of such Holder so accepted for all Notes tendered prior thereto exchange; provided that, in the Exchange Offercase of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, ; (ii) no action, suit 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 Issuers to proceed with the Exchange OfferOffer or the Private Exchange, and no material adverse development shall have occurred in any existing action, suit action or proceeding with respect to the Company Company; and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems Issuers deem necessary for the consummation of the Exchange Offer.
(b) Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under, and entitled to the benefits of, under (i) the Indenture or a trust (ii) an indenture that is identical in all material respects to the Indenture (other than and which, in either case, has been qualified under the TIA or is exempt from such changes 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 are necessary to comply with any requirements one class and that none of the SEC Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Company determines upon advice of its outside counsel that it is not permitted to effect or maintain the qualifications thereof under the TIA) and Exchange Offer, (ii) the Collateral AgreementsExchange Offer is not consummated within 395 days of the Issue Date, (iii) the Initial Purchasers or any other holder of Private Exchange Notes so requests in writing to the Issuers at any time after the consummation of the Exchange Offer or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under U.S. state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Issuers within the meaning of the Securities Act and other than any Participating Broker-Dealer by virtue of any prospectus delivery requirement) and so notifies the Company prior to the 20th Business Day following consummation of the Exchange Offer of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Company shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and the Issuers shall file a Shelf Registration pursuant to Section 3 hereof; provided, however, that no Holder (other than an Initial Purchaser) shall be entitled to have the Notes held by it covered by such Shelf Registration unless such Holder agrees in writing to be bound by all of the provisions of this Agreement applicable to such Holder.
Appears in 1 contract
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Guarantor to) (i) no later than the Filing Date, prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to exchange the Holders of Notes for Exchange Notes guaranteed by the Guarantors which shall have terms substantially identical in all material respects to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their all commercially reasonable efforts to cause the Exchange Offer Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their all commercially reasonable efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their all commercially reasonable efforts to issue issue, on or prior to 30 days Business Days after the date on which that the Exchange Offer Registration Statement is declared effectiveeffective by the SEC (or such longer period if required by applicable securities laws), Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes and the Private Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA), which in either case will provide that (i) and the Exchange Notes will not be subject to the registration rights, transfer restrictions or Special Interest provisions set forth in the Indenture, (ii) the Collateral Agreements.Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture and
Appears in 1 contract
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Guarantor to) (i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their commercially its reasonable best efforts to cause the Exchange Registration Statement to become be declared effective as promptly as practicable after by the filing thereof, but in no event later than SEC on or prior to the Effectiveness Date, (iii) use their commercially its reasonable best efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their commercially its reasonable best efforts to issue on or prior to 30 days Business Days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes validly tendered (and not withdrawn) prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC; provided, however, notwithstanding any other provision of the exchange offer, the Company will not be required to accept for exchange, or to issue Exchange Notes in exchange for, any old Notes and may terminate or amend the Exchange Offer, if any of the following events occur prior to the expiration of the Exchange Offer: (i) the Exchange Offer violates any applicable law or applicable interpretation of the staff of the SEC; (ii) no action, suit an action or proceeding shall have been instituted or threatened in any court or by any governmental agency which that might materially impair the Company’s ability of the Company to proceed with the Exchange Offer, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and ; (iii) the Company shall not have received all governmental approvals shall have been obtained, which approvals the Company reasonably that it deems necessary for to consummate the consummation of Exchange Offer; or (iv) there has been proposed, adopted, or enacted any law, statute, rule or regulation that, in the Company’s reasonable judgment, would materially impair the Company’s ability to consummate the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA).
(c) Interest on the Exchange Notes and Private Exchange Notes will accrue from the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from and including the Issue Date. Each Exchange Note and Private Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to represent in writing (which may be contained in the applicable letter of transmittal) to the Company and Guarantors (i) such Holder is neither an “affiliate” of the Company or any Guarantor as defined in Rule 405 under the Securities Act, nor a broker-dealer tendering Notes acquired directly from the Company and the Guarantors for its own account, (ii) any Exchange Notes such Holder receives in the Exchange Offer will be acquired by such Holder in the ordinary course of its business, (iii) at the time of the commencement of the Exchange Offer, neither such Holder nor, to such Holder’s knowledge, anyone receiving Exchange Notes from such Holder, has any arrangement or understanding with any Person to participate in the distribution, as defined in the Securities Act, of the Exchange Notes in violation of the Securities Act, (iv) if such Holder is a broker-dealer, that such Holder will receive the Exchange Notes for its own account in exchange for the old Notes that were acquired by such Holder as a result of its market-making or other trading activities and that such Holder will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of the Exchange Notes such Holder receives and (v) if such Holder is not a broker-dealer, such Holder is not engaged in, and does not intend to engage in, the distribution, as defined in the Securities Act, of the Exchange Notes.
(e) The Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the judgment of the Initial Purchasers, represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Company shall use its reasonable best efforts to keep the Exchange 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 (the “Applicable Period”).
(f) If, upon consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them and having the status of an unsold allotment in the initial distribution, the Company (upon the request from the Initial Purchasers) shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for the Notes held by the Initial Purchasers, a like principal amount of debt securities of the Company that are identical in all material respects to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (the “Private Exchange Notes”) (and which are issued pursuant to the same indenture as the Exchange Notes). The Company shall request the CUSIP Service Bureau to issue the same CUSIP and ISIN number for the Private Exchange Notes and the Exchange Notes but shall have no liability as a result of the Private Exchange Notes bearing a different CUSIP or ISIN number.
(g) In connection with the Exchange Offer, the Company shall (and shall cause each Guarantor to):
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Registration Statement, together with an appropriate letter of transmittal that is an exhibit to the Exchange Registration Statement, and any related documents (or, in the case of global Notes, comply with the applicable procedures of DTC for furnishing such documents);
(ii) keep the Exchange Offer open for not less than 20 business days after the date notice thereof is mailed (or provided by DTC procedures) to the Holders (or longer if required by applicable law)
(iii) utilize the services of a depository for the Exchange Offer with an address in the Borough of Manhattan, the City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York City time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the Exchange Offer.
(h) As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Company shall (and shall cause each Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered pursuant to the Exchange Offer or the Private Exchange, as the case may be, and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) use reasonable best efforts to cause the Trustee to authenticate and deliver promptly to each Holder tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be (or, in the case of global Exchange Notes and Private Exchange Notes, comply with applicable DTC procedures to credit such Holder with a beneficial interest therein), equal in principal amount to the Notes of such Holder so accepted for exchange.
(i) The Exchange Notes and the Private Exchange Notes may be issued under (i) the Indenture or (ii) an indenture 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), which in either event will provide that the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture, that the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture).
(j) If: (i) applicable interpretations of the staff of the SEC would not permit the consummation of the Exchange Offer prior to the Effectiveness Date; (ii) the Collateral AgreementsExchange Offer is not consummated prior to the Effectiveness Date for any reason; or (iii) in the case of (A) any Holder not permitted by applicable law or SEC policy to participate in the Exchange Offer, (B) any Holder participating in the Exchange Offer that receives Exchange Notes that may not be sold to the public without delivering a prospectus and the Prospectus contained in the Exchange Registration Statement is not appropriate or available for resale by such Holder (other than due solely to the status of such Holder as an affiliate of the Company or any Guarantor within the meaning of the Securities Act) or (C) any broker-dealer that holds Notes acquired directly from the Company, any Guarantor or any of their affiliates and, in each such case contemplated by this clause (iii), such Holder notifies the Company prior to the 20th Business Day following consummation of the Exchange Offer, then the Company shall promptly (and in any event within five Business Days) deliver to the Holders (or in the case of an occurrence of any event described in clause (iii) of this Section 2(j) hereof, to any such Holder) and the Trustee notice thereof (the “Shelf Notice”) and shall file an Initial Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (American Apparel, Inc)
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Guarantor to) )
(i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate registration form under the Securities Act with respect to an offer (the “Exchange Offer”) to exchange the Holders of Notes to issue and deliver to such Holders, in exchange for the Exchange Notes, a like principal amount of Exchange which shall have terms substantially identical in all material respects to the Notes, (ii) use their commercially its reasonable best efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially its reasonable best efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their commercially its reasonable best efforts to issue on or prior to 30 45 days after the date on which the Exchange Registration Statement is declared effectiveEffectiveness Date, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes and the Private Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) which in either case will provide that (i) the Exchange Notes will not be subject to the transfer restrictions or additional interest provisions set forth in the Indenture, (ii) the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture and (iii) the Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in all the security granted by the Company pursuant to the Collateral Agreements and in any Guarantee (as such terms are defined in the Indenture) on an equal and ratable basis.
(c) Interest on the Exchange Notes and Private Exchange Notes will accrue from (i) the later of (x) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or (y) if the Note is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (ii) if no interest has been paid on the Notes, from the Issue Date. Each Exchange Note and Private Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to represent to the Company that at the time of the consummation of the Exchange Offer, (i) any Exchange Notes received by such Holder will be acquired in the ordinary course of its business, (ii) at the time of commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) such Holder is not an “affiliate” (as defined in Rule 405 of the Securities Act) of the Company or if such Holder is an affiliate such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchaser which shall contain all of the information that the SEC may require with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making activities or other trading activities (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the judgment of the Initial Purchaser, represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its reasonable best efforts to keep the Exchange 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 the period ending on the earlier of (i) 180 days from the date the Exchange Offer Registration Statement is declared effective and (ii) the Collateral Agreementsdate on which such Participating Broker-Dealer is no longer required to deliver a prospectus in connection with market-making or other trading activities (the “Applicable Period”).
(f) If, upon consummation of the Exchange Offer, the Initial Purchaser holds any Notes acquired by it and having the status of an unsold allotment in the initial distribution, the Company (upon the written request from the Initial Purchaser) shall, simultaneously with the delivery of the Exchange Notes pursuant to the Exchange Offer, issue and deliver to the Initial Purchaser in exchange (the “Private Exchange”) for the Notes held by the Initial Purchaser, a like principal amount at maturity of Senior Secured Notes (issued under the same Indenture as the Exchange Notes) that are identical in all material respects to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (the “Private Exchange Notes”). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
(g) In connection with the Exchange Offer, the Company shall (and shall cause each Guarantor to):
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Registration Statement, together with an appropriate letter of transmittal (substantially in the form attached as an exhibit to the Exchange Registration Statement) and any related documents;
(ii) keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice thereof is mailed to the Holders;
(iii) utilize the services of a depository for the Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply with all applicable laws.
(h) As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Company shall (and shall cause each Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered and not withdrawn pursuant to the Exchange Offer or the Private Exchange, as the case may be;
(ii) deliver to the Trustee for cancellation all Registrar le Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount at maturity to the Notes of such Holder so accepted for exchange.
(i) If, (i) any change in law or in applicable interpretations thereof by the staff of the SEC would not permit the consummation of the Exchange Offer, (ii) for any other reason the Exchange Registration Statement is not declared effective on or prior to the Effectiveness Date, or the Exchange Offer is not consummated within 45 days after the Effectiveness Date, (iii) the Initial Purchaser so requests with respect to the Notes (or the Private Exchange Notes) not eligible to be exchanged for Exchange Notes in the Exchange Offer and held by it following consummation of the Exchange Offer, or (iv) in the case of (A) any Holder not permitted to participate in the Exchange Offer, (B) any Holder participating in the Exchange Offer that receives Exchange Notes that may not be sold or transferred without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) or (C) any Participating Broker Dealer holds Notes acquired directly from the Company or one of its affiliates and, in each case contemplated by this clause (iv), such Holder notifies the Company within two months of consummation of the Exchange Offer, then in each case the Company shall promptly (and in any event within ten Business Days of such notification) deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall as promptly as practicable and at its sole expense use its reasonable best efforts to thereafter file an Initial Shelf Registration Statement pursuant to Section 3.
Appears in 1 contract
Samples: Registration Rights Agreement (Broadview Networks Holdings Inc)
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Guarantor to) )
(i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their all commercially reasonable efforts to cause the Exchange Registration Statement to become be declared effective as promptly as practicable after by the filing thereof, but in no event later than SEC on or prior to the Effectiveness Date, (iii) use their commercially reasonable its best efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their all commercially reasonable efforts to issue on or prior to 30 days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA).
(c) Interest on the Exchange Notes and Private Exchange Notes will accrue from the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes. Each Exchange Note and Private Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to represent (i) that any Exchange Notes received by it will be acquired in the ordinary course of its business, (ii) that at the Collateral Agreementstime of the commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that if such Holder is an “affiliate” of the Company within the meaning of Rule 405 of the Securities Act, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the judgment of the Initial Purchasers, represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its best efforts to keep the Exchange 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 (the “Applicable Period”).
(f) If, upon consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them and having the status of an unsold allotment in the initial distribution, the Company (upon the written request from the Initial Purchasers) shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for the Notes held by the Initial Purchasers, a like principal amount of Notes that are identical to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (the “Private Exchange Notes”) (and which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
(g) In connection with the Exchange Offer, the Company shall (and shall cause each Guarantor to):
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange 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 depository for the Exchange Offer with an address in the Borough of Manhattan, the City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all applicable laws.
(h) As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Company shall (and shall cause each Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered pursuant to the Exchange Offer or the Private Exchange, as the case may be, and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange.
(i) The Exchange Notes and the Private Exchange Notes may be issued under (i) the Indenture or (ii) an indenture 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), which in either event will provide that the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture, that the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture).
(j) If: (i) the Company is not required to file an Exchange Registration Statement; (ii) applicable interpretations of the staff of the SEC would not permit the consummation of the Exchange Offer prior to the Effectiveness Date; or (iii) in the case of (A) any Holder not permitted by applicable law or SEC policy to participate in the Exchange Offer, (B) any Holder participating in the Exchange Offer that receives Exchange Notes that may not be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) or (C) any broker-dealer that holds Notes acquired directly from the Company or any of its affiliates and, in each such case contemplated by this clause (iii), such Holder notifies the Company within 20 Business Days of consummation of the Exchange Offer, then the Company shall promptly (and in any event within five Business Days) deliver to the Holders (or in the case of an occurrence of any event described in clause (iii) of this Section 2(j), to any such Holder) and the Trustee notice thereof (the “Shelf Notice”) and shall as promptly as possible thereafter (but in no event later than the Shelf Filing Date) file an Initial Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Subsidiary Guarantor to) (i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their commercially reasonable efforts to issue on or prior to 30 days Business Days, or longer, if required by applicable securities laws, after the date on which the Exchange Offer Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in accordance with the terms of the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA).
(c) and Interest on the Exchange Notes will accrue from the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes. Each Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to make such representations as may be required by applicable law or any applicable interpretation of the staff of the SEC, including (i) that any Exchange Notes received by it will be acquired in the ordinary course of its business, (ii) that at the Collateral Agreementstime of the commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that if such Holder is an “affiliate” of the Company within the meaning of Rule 405 of the Securities Act, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Subsidiary Guarantor to) include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the applicable positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the reasonable judgment of the Initial Purchasers, represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such Persons must comply with such requirements in order to resell the Exchange Notes (the “Applicable Period”).
(f) In connection with the Exchange Offer, the Company shall (and shall cause each Subsidiary Guarantor to):
(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 depository for the Exchange Offer with an address in the Borough of Manhattan, the City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Entitled Securities 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 in all material respects with all applicable laws.
(g) As soon as practicable after the close of the Exchange Offer, the Company shall (and shall cause each Subsidiary Guarantor to):
(i) accept for exchange all Entitled Securities validly tendered pursuant to the Exchange Offer and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Entitled Securities so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Entitled Securities, Exchange Notes equal in principal amount to the Notes of such Holder so accepted for exchange.
(h) The Exchange Notes may be issued under (i) the Indenture or (ii) an indenture 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), which in either event will provide that the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in any Subsidiary Guarantee (as such terms are defined in the Indenture) on an equal and ratable basis.
(i) If (1) the Company and the Subsidiary Guarantors are not required to file the Exchange Offer Registration Statement or permitted to consummate the Exchange Offer because the Exchange Offer is not permitted by applicable law or SEC policy; or (2) any holder of Entitled Securities notifies the Company prior to the consummation of the Exchange Offer that (A) it is prohibited by law or SEC policy from participating in the Exchange Offer; (B) it may not resell the Exchange Notes acquired by it in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales; or (C) it is a broker-dealer and owns Notes acquired directly from the Company or an affiliate of the Company, then the Company shall promptly (and in any event within five Business Days) deliver to the Holders and the Trustee notice thereof (the “Shelf Notice”) and shall as promptly as possible thereafter (but in no event later than the Shelf Filing Date) file an Initial Shelf Registration pursuant to Section 3 to cover resales of the Notes by the holders of the Notes who satisfy certain conditions relating to the provision of information in connection with the Shelf Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Energy Partners LTD)
Exchange Offer. (a) Parent and Unless the Company Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Issuers shall (and shall cause each other Guarantor with respect to its guarantee to) )
(i) prepare and file with the SEC promptly after the date hereof, but in no event later than by the Filing Date, a registration statement (the “"Exchange Registration Statement”") on an appropriate form under the Securities Act with respect to an offer (the “"Exchange Offer”") to the Holders of Notes Units to issue and deliver to such Holders, in exchange for the NotesUnits, a like principal amount number of Exchange NotesUnits, (ii) use their commercially reasonable best efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than by the Effectiveness Date, (iii) use their commercially reasonable best efforts to keep the Exchange Registration Statement effective until the consummation of for not less than 20 Business Days after the Exchange Offer in accordance with its termsRegistration Statement is declared effective, and (iv) commence the Exchange Offer and use their commercially reasonable best efforts to issue on or prior to 30 days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes Units in exchange for all Notes Units tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Units and the underlying Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) and (ii) the Collateral Agreements.
(c) Interest on the Exchange Notes and Private Exchange Notes will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes. Each Exchange Note and Private Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Issuers may require each Holder as a condition to participation in the Exchange Offer to represent (i) that any Exchange Units received by it will be acquired in the ordinary course of its business, (ii) that at the time of the commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Units in violation of the provisions of the Securities Act, (iii) that if such Holder is an "affiliate" of the either of the Issuers or a Guarantor within the meaning of Rule 405 of the Securities Act, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) 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 Units and (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus in connection with any resale of the Exchange Units.
(e) The Issuers shall include within the Prospectus contained in the Exchange Registration Statement a section entitled "Plan of Distribution" which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Units received by such broker-dealer in the Exchange Offer for its own account in exchange for Units that were acquired by it as a result of market-making or other trading activity (a "Participating Broker-Dealer"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the judgment of the Initial Purchaser, represent the prevailing views of the staff of the SEC. Such "Plan of Distribution" section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Units. The Issuers shall use their reasonable best efforts to keep the Exchange 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 Units (the "Applicable Period").
(f) If, upon consummation of the Exchange Offer, the Initial Purchaser holds any Units acquired by it and having the status of an unsold allotment in the initial distribution, the Issuers (upon the written request from the Initial Purchaser) shall, simultaneously with the delivery of the Exchange Units in the Exchange Offer, issue and deliver to the Initial Purchaser, in exchange (the "Private Exchange") for the Units held by the Initial Purchaser, a like principal amount of Exchange Units that are identical to the Units, except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (the "Private Exchange Units" and the Exchange Notes underlying the Units the "Private Exchange Notes") (and which are issued pursuant to the same indenture as the Exchange Units and Exchange Notes). The Private Exchange Units shall bear the same CUSIP number as the Exchange Units.
(g) In connection with the Exchange Offer, the Issuers shall (and shall cause each Subsidiary Guarantor to):
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange 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 on which the Exchange Registration Statement is declared effective;
(iii) utilize the services of a depository for the Exchange Offer with an address in the Borough of Manhattan, the City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Units 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 in all material respects with all applicable laws.
(h) As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Issuers shall (and shall cause each Subsidiary Guarantor to):
(i) accept for exchange all Registrable Units validly tendered pursuant to the Exchange Offer or the Private Exchange, as the case may be, and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Registrable Units so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Registrable Units, Exchange Units or Private Exchange Units (and the underlying Exchange Notes and Private Exchange Notes), as the case may be, equal in principal amount to the Units of such Holder so accepted for exchange.
(i) The Exchange Units and the Private Exchange Units (and the underlying Exchange Notes and Private Exchange Notes) may be issued under (i) the Indenture or (ii) an indenture 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), which in either event will provide that the Exchange Units will not be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Units, the Private Exchange Units and the Units, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in all the respective security granted by the Issuers pursuant to the Collateral Agreements and in any Subsidiary Guarantee (as such terms are defined in the Indenture) on an equal and ratable basis.
(j) If: (i) applicable interpretations of the staff of the SEC would not permit the consummation of the Exchange Offer; (ii) subsequent to the consummation of the Private Exchange, any Holder of Private Exchange Units so requests; (iii) the Exchange Offer is not consummated by the 210th day following the Closing Date; or (iv) (A) any Holder is prohibited by law or Commission policy form participating in the Exchange Offer, (B) if the Initial Purchaser so requests with respect to Units not eligible to be exchanged for Exchange Units in the Exchange Offer, (C) any Holder participating in the Exchange Offer receives Exchange Units that may not be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Issuers within the meaning of the Securities Act) or (D) any broker-dealer holds Units acquired directly from the Issuers or any of their affiliates and, in each such case contemplated by this clause (v), and such Holder notifies the Issuers within six months of consummation of the Exchange Offer, then the Issuers shall promptly (and in any event within five Business Days) deliver to the Holders (or in the case of an occurrence of any event described in clause (v) of this Section 2(j), to any such Holder) and the Trustee written notice thereof (the "Shelf Notice") and shall promptly (but in no event later than the Shelf Filing Date) file an Initial Shelf Registration pursuant to Section 3.
Appears in 1 contract
Samples: Registration Rights Agreement (Phibro Animal Health Corp)
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the Commission, the Company shall (and shall cause each other Guarantor to) )
(i) prepare and file with the SEC promptly Commission after the date hereof, but in no event later than the Filing Date, hereof a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their its commercially reasonable efforts to cause have the Exchange Offer Registration Statement to become declared effective as promptly as practicable by the Commission after the filing thereof, but and in no event later than the Effectiveness Target Date, (iii) use their its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their its commercially reasonable efforts to issue issue, on or prior to 30 days after the date on which the Exchange Registration Statement is declared effectiveConsummation Target Date, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange OfferCommission.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 Commission to effect or maintain the qualifications thereof under the TIA).
(c) Interest on the Exchange Notes and Private Exchange Notes will accrue from the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes. Each Exchange Note and Private Exchange Note shall bear interest at the rate set forth thereon.
(d) The Company will require each Holder as a condition to participation in the Exchange Offer to represent (i) that any Exchange Notes received by it will be acquired in the ordinary course of its business, (ii) that at the Collateral Agreementstime of the commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that if such Holder is an “affiliate” of the Company within the meaning of Rule 405 of the Securities Act, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) 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 Notes; (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus in connection with any resale of the Exchange Notes; and (vi) such Holder is not acting on behalf of any Person who could not truthfully make the foregoing representations.
(e) The Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers which shall contain a summary statement of the positions taken or policies made by the staff of the Commission with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the Commission or such positions or policies, in the reasonable judgment of the Initial Purchasers based upon advice of counsel, represent the prevailing views of the staff of the Commission. Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the Commission, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and shall include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such Persons must comply with such requirements in order to resell the Exchange Notes; provided that such period shall not exceed the lesser of 180 days and the date on which all Persons subject to the prospectus delivery requirements of the Securities Act have sold all Exchange Notes held by them (the “Applicable Period”).
(f) If, upon consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them and having the status of an unsold allotment in the initial distribution, the Company (upon the written request from the Initial Purchasers) shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for the Notes held by the Initial Purchasers, a like principal amount of Notes that are identical to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (the “Private Exchange Notes”) (and which are issued pursuant to the same Indenture as the Exchange Notes). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes, if permitted by the CUSIP Services Bureau.
(g) In connection with the Exchange Offer, the Company shall (and shall cause each Guarantor to, to the extent necessary):
(i) mail, or cause to be mailed, 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 20 Business Days after the date that 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 or in Wilmington, Delaware, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Entitled Securities at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all applicable laws related to the Exchange Offer.
(h) As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Company shall (and shall cause each Guarantor to, to the extent necessary):
(i) accept for exchange all Entitled Securities validly tendered pursuant to the Exchange Offer or the Private Exchange, as the case may be, and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Entitled Securities so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Entitled Securities, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange.
(i) The Exchange Notes and the Private Exchange Notes may be issued under (i) the Indenture or (ii) an indenture identical to the Indenture (other than such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA), which in either event will provide that the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture, that the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in any Guarantee (as such terms are defined in the Indenture) on an equal and ratable basis.
(j) If: (i) the Company and the Guarantors are not permitted to consummate the Exchange Offer because the consummation of the Exchange Offer is not permitted by applicable law or Commission policy, or (ii) in the case of (A) any Holder not permitted by applicable law or Commission policy to participate in the Exchange Offer, (B) any Holder participating in the Exchange Offer that receives Exchange Notes that may not resell such Exchange Notes to the public without delivering a Prospectus and the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales or (C) any broker-dealer that holds Notes acquired directly from the Company or any of its affiliates and, in each such case contemplated by this clause (ii), such Holder notifies the Company prior to the 20th Business Day following consummation of the Exchange Offer, then the Company and the Guarantors shall file a Shelf Registration Statement pursuant to Section 3 (such obligation to file a Shelf Registration Statement, a “Shelf Filing Obligation”) and shall deliver notice thereof within five Business Days to the Holders (or in the case of an occurrence of any event described in clause (ii) of this Section 2(j), to any such Holder) and the Trustee.
Appears in 1 contract
Samples: Registration Rights Agreement (Lantheus MI Intermediate, Inc.)
Exchange Offer. (a) Parent and the The Company shall (and shall cause each other Guarantor to) (i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the Securities Act with respect to an a proposed offer (the “"Exchange Offer”") to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like aggregate principal amount of Exchange NotesSecurities, (ii) use their commercially reasonable its best efforts to cause the Exchange Offer Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer in accordance with pursuant to its terms, and (iv) unless the Exchange Offer would not be permitted by a policy of the SEC, commence the Exchange Offer and use their commercially reasonable its best efforts to issue issue, on or prior to 30 days Business Days after the date on which the Exchange Offer Registration Statement is declared effective, Exchange Notes Securities in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) that the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, SEC and (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offeras otherwise expressed herein.
(b) The Exchange Notes Securities shall be issued under, and entitled to the benefits of, (i) 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 qualifications qualification thereof under the TIA).
(c) In connection with the Exchange Offer, 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 that is an exhibit to the Exchange Offer Registration Statement and related documents;
(ii) keep the Collateral Agreements.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);
Appears in 1 contract
Samples: Registration Rights Agreement (Transamerican Energy Corp)
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Subsidiary Guarantor to) (i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their commercially reasonable efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their commercially reasonable efforts to issue on or prior to 30 days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) and (ii) the Collateral AgreementsSecurity Documents.
(c) Interest on the Exchange Notes and Private Exchange Notes will accrue (A) from the later of (i) the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefore or (ii) if the note is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date; or (B) if no interest has been paid on the Notes, from the date of original issue of the Notes. Each Senior Secured Exchange Note, Senior Secured Floating Rate Exchange Note, Senior Secured Private Exchange Note and Senior Secured Floating Rate Private Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Senior Secured Notes and the Senior Secured Floating Rate Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to represent (i) that any Exchange Notes received by it will be acquired in the ordinary course of its business, (ii) that at the time of the commencement of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that either such Holder is not an “affiliate” of the Company within the meaning of Rule 405 of the Securities Act, or if such Holder is an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Subsidiary Guarantor to) include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchaser which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the judgment of the Initial Purchaser, represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use commercially reasonable efforts to keep the Exchange 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 (the “Applicable Period”).
(f) If, upon consummation of the Exchange Offer, the Initial Purchaser holds any Senior Secured Notes or Senior Secured Floating Rate Notes acquired by it and having the status of an unsold allotment in the initial distribution, the Company (upon the written request from the Initial Purchaser) shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchaser, in exchange (the “Private Exchange”) for the Senior Secured Notes or Senior Secured Floating Rate Notes, as the case may be, held by the Initial Purchaser, a like principal amount of senior secured notes or senior secured floating rate notes that are identical to the Senior Secured Exchange Notes or the Senior Secured Floating Rate Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (such notes being referred to separately as the “Senior Secured Private Exchange Notes” and the “Senior Secured Floating Rate Private Exchange Notes”, and collectively as the “Private Exchange Notes”) (and which are issued pursuant to the same indenture as the Exchange Notes). The Senior Secured Private Exchange Notes shall bear the same CUSIP number as the Senior Secured Exchange Notes and the Senior Secured Floating Rate Private Exchange Notes shall bear the same CUSIP number as the Senior Secured Floating Rate Exchange Notes.
(g) In connection with the Exchange Offer, the Company shall (and shall cause each Subsidiary Guarantor to):
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange 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 depository for the Exchange Offer with an address in the Borough of Manhattan, the City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all applicable laws.
(h) As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Company shall (and shall cause each Subsidiary Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered pursuant to the Exchange Offer or the Private Exchange, as the case may be, and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange.
(i) The Exchange Notes and the Private Exchange Notes may be issued under (i) the Indenture or (ii) an indenture 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), which in either event will provide that the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture, that the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in all the security granted by the Company pursuant to the Security Documents and in any Subsidiary Guarantee (as such terms are defined in the Indenture) on an equal and ratable basis.
(j) If: (i) prior to the consummation of the Exchange Offer, the Holders of a majority in aggregate principal amount of Registrable Notes determines in its or their reasonable judgment that the Exchange Notes would not, upon receipt, be tradeable by the Holders thereof without restriction under the Securities Act and the Exchange Act and without material restrictions under applicable Blue Sky or state securities laws; (ii) because of any change in law or applicable interpretations of the staff of the SEC, the Company is not permitted to effect the Exchange Offer (after the Company and the Subsidiary Guarantors have complied with the procedures set forth herein); (iii) subsequent to the consummation of the Private Exchange, any Holder of Private Exchange Notes so requests; (iv) the Exchange Offer is not consummated within 30 days from the date the Exchange Offer Registration Statement was declared effective; or (v) in the case of (A) any Holder not permitted to participate in the Exchange Offer, (B) any Holder participating in the Exchange Offer that receives Exchange Notes that may not be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) or (C) any broker-dealer that holds Notes acquired directly from the Company or any of its affiliates and, in each such case contemplated by this clause (v), such Holder notifies the Company within six months of consummation of the Exchange Offer, then the Company shall promptly (and in any event within five Business Days) deliver to the Holders (or in the case of an occurrence of any event described in clause (v) of this Section 2(j), to any such Holder) and the Trustee notice thereof (the “Shelf Notice”) and shall as promptly as possible thereafter (but in no event later than the applicable Filing Date) file an Initial Shelf Registration pursuant to Section 3.
Appears in 1 contract
Samples: Registration Rights Agreement (Atlantic Paratrans of Arizona, Inc.)
Exchange Offer. (a) Parent Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Co-Issuers shall (and the Company shall (and shall cause each other Subsidiary Guarantor to) )
(i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement Registration Statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their commercially reasonable efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its termsterms and the terms hereof, and (iv) commence the Exchange Offer and use their commercially reasonable efforts to issue on or prior to 30 days Business Days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC.
(b) Interest on the Exchange Notes and Private Exchange Notes will accrue from the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes. Each Exchange Note and Private Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(c) The Co-Issuers may require each Holder as a condition to participation in the Exchange Offer to represent (i) that any Exchange Notes received by it will be acquired in the ordinary course of its business, (ii) no actionthat at the time of the commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, suit (iii) that if such Holder is an “affiliate” of any Co-Issuer within the meaning of Rule 405 under the Securities Act, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) if such Holder is not a Participating Broker-Dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Notes and (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(d) The Co-Issuers shall (and the Company shall cause each Subsidiary Guarantor to) include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers which shall contain a summary statement of the positions taken or proceeding shall policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity (a “Participating Broker-Dealer”), whether such positions or policies have been instituted or threatened in any court or publicly disseminated by any governmental agency which might materially impair the ability staff of the Company SEC or such positions or policies, in the judgment of the Initial Purchasers, represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also allow, to proceed the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and shall include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Co-Issuers shall use their commercially reasonable efforts to keep the Exchange 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 (the “Applicable Period”).
(e) If, upon consummation of the Exchange Offer, any Initial Purchaser holds any Notes acquired by it and having the status of an unsold allotment in the initial distribution, the Co-Issuers (upon the written request from such Initial Purchaser) shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to such Initial Purchaser, in exchange (the “Private Exchange”) for the Notes held by such Initial Purchaser, a like principal amount of debt securities of the Co-Issuers that are identical to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (the “Private Exchange Notes”) (and which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
(f) In connection with the Exchange Offer, the Co-Issuers shall (and no material adverse development the Company shall have occurred in any existing actioncause each Subsidiary Guarantor to):
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Registration Statement, suit or proceeding together with respect an appropriate letter of transmittal that is an exhibit to the Company Exchange 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) all governmental approvals shall have been obtainedutilize the services of a depository for the Exchange Offer with an address in the Borough of Manhattan, the City of New York, which approvals may be the Company reasonably deems necessary for Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the consummation close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all applicable laws.
(g) As soon as practicable after the close of the Exchange OfferOffer or the Private Exchange, as the case may be, the Co-Issuers shall (and the Company shall cause each Subsidiary Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered pursuant to the Exchange Offer or the Private Exchange, as the case may be, and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the principal amount of the Registrable Notes of such Holder so accepted for exchange.
(bh) The Exchange Notes and the Private Exchange Notes shall be issued under, and entitled to the benefits of, under (i) the Indenture or a trust (ii) an 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 qualifications qualification thereof under the TIA), which in either event will provide that the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture, that the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture or such other indenture) and entitled to the benefits of the Indenture or such other indenture and participate in all the security granted by the Co-Issuers pursuant to the Collateral Agreements and in any Subsidiary Guarantee (as defined in the Indenture) on an equal and ratable basis.
(i) If (i) prior to the consummation of the Exchange Offer, the Holder or Holders of a majority in aggregate principal amount of Registrable Notes determines in its or their reasonable judgment and notifies or notify the Company in writing that the Exchange Notes would not, upon receipt, be transferred by the Holders thereof without restriction under the Securities Act and without material restrictions under applicable Blue Sky or state securities laws; (ii) applicable interpretations of the Collateral Agreementsstaff of the SEC would not permit the consummation of the Exchange Offer on or prior to the Effectiveness Date; (iii) subsequent to the consummation of the Private Exchange, any Holder of Private Exchange Notes so requests in writing to the Co-Issuers; (iv) the Exchange Offer is not consummated within 240 Days of the Closing Date for any reason; or (v) in the case of (A) any Holder not permitted by applicable law or SEC policy to participate in the Exchange Offer, (B) any Holder participating in the Exchange Offer that receives Exchange Notes that may not be transferred without restriction under state or federal securities laws (other than due solely to the status of such Holder as an affiliate of any Co-Issuer within the meaning of the Securities Act) or (C) any broker-dealer that holds Notes acquired directly from the Co-Issuers or any of their affiliates and, in the case of this clause (v), such Holder notifies the Co-Issuers of such fact within 180 Days of consummation of the Exchange Offer, then the Co-Issuers shall promptly (and in any event within five Business Days of such event, notice or request, as applicable) deliver to the Holders (or in the case of an occurrence of any event described in clause (v) of this Section 2(i), to any such Holder) and the Trustee notice thereof (the “Shelf Notice”) and shall as promptly as possible thereafter (but in no event later than the Shelf Filing Date) file an Initial Shelf Registration Statement pursuant to Section 3.
Appears in 1 contract
Samples: Registration Rights Agreement (United Maritime Group, LLC)
Exchange Offer. (a) Parent and Notwithstanding the provisions of Section 3(a), at the option of the Company, to the extent any applicable law or applicable interpretation of the staff of the SEC would permit holders thereafter to resell Exchange Notes without restriction, the Company may, in lieu of complying with Section 3(a), cause to be filed an Exchange Offer Registration Statement covering the offer by the Company to the holders of Senior Notes to exchange all of the Registrable Securities for Exchange Notes and to have such Exchange Offer consummated not later than September 27, 1998. The Company shall (commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC by mailing the related exchange offer Prospectus and shall cause accompanying documents to each holder of Senior Notes stating, in addition to such other Guarantor to) disclosures required by applicable law:
(i) prepare that the Exchange Offer is being made pursuant to this Agreement and file that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the date of acceptance for exchange (which shall be a period of at least 30 days from the date such notice is mailed) (the "Exchange Date");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest but, except as set forth in the last paragraph of this Section 3(d), will not retain any rights under this Agreement;
(iv) that holders of Senior Notes electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, together with the SEC promptly after enclosed letters of transmittal, to the date hereofinstitution and at the address (located in the Borough of Manhattan, but The City of New York) specified in no event the notice prior to the close of business on the last Exchange Date; and
(v) that holders of Senior Notes will be entitled to withdraw their election not later than the Filing close of business on the last Exchange Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) by sending to the Holders institution and at the address (located in the Borough of Notes to issue and deliver to Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holdersholder, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their commercially reasonable efforts Registrable Securities delivered for exchange and a statement that such holder is withdrawing its election to cause the Exchange Registration Statement to become effective as promptly have such Senior Notes exchanged. As soon as practicable after the filing thereof, but in no event later than the Effectiveness Exchange Date, the Company shall:
(iiii) accept for exchange Registrable Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company and issue, and cause the trustee under the indenture governing the Exchange Notes to promptly authenticate and mail to each holder, a new Exchange Note, as the case may be, equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company shall use their commercially reasonable its best efforts to keep the Exchange Registration Statement effective until the consummation of complete the Exchange Offer in accordance as provided above and shall comply with its termsthe applicable requirements of the Securities Act, and (iv) commence the Exchange Offer Act and use their commercially reasonable efforts to issue on or prior to 30 days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes other applicable laws in exchange for all Notes tendered prior thereto in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC. The Company shall inform the Purchasers of the names and addresses of the holders of Senior Notes to whom the Ex change Offer is made, (ii) no action, suit or proceeding and the Purchasers shall have been instituted or threatened the right to contact such holders and otherwise facilitate the tender of Registrable Securities in any court or by any governmental agency which might materially impair the ability of the Company to proceed Exchange Offer. In connection with the Exchange OfferRegistration, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect the Company will provide a letter to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation staff of the SEC that contains statements and representations substantially in the form set forth in Mary Xxx Xxxmetics, Inc. (no-action letter available June 5, 1991), Morqan Stanxxx & Xo. Incorporated (no-action letter available June 5, 1991), Xxxxxxx, Xxc. (no-action letter available October 11, 1991), Shearman & Sterling (no-action letter available July 2, 1993), Grupo Financiero InverMexico, S.A. (no-action letter available April 4, 1995) and no-action letters to similar effect. As provided in the Indenture, in the event that neither the Shelf Registration Statement is declared effective nor the Exchange Offer.
(b) The Exchange Offer is consummated by September 27, 1998, the interest payable on the Senior Notes shall be issued underincreased, and entitled to beginning at such time, by one-half of one percent per annum until the benefits of, (i) Exchange Offer is consummated or the Indenture or a trust indenture that Shelf Registration Statement 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 qualifications thereof under the TIA) and (ii) the Collateral Agreementsdeclared effective.
Appears in 1 contract
Exchange Offer. (a) Parent and the Company VI shall (and shall cause each other Guarantor to) (i) cause Old VII to prepare and file with the SEC as promptly after as practicable following the date hereof, but in no event later than the Filing Date, hereof a registration statement on Form S-4 (the “Exchange Registration Statement”or another appropriate form) on an appropriate form under the Securities 1933 Act with respect to an offer the Exchange Offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, "Registration Statement"); (ii) use their its commercially reasonable efforts to cause have the Exchange Registration Statement to become declared effective as promptly as practicable after by the filing thereof, but in no event later than SEC under the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their commercially reasonable efforts to issue on or prior to 30 days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any law or applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company 1933 Act; and (iii) take all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of such action as may be required under state blue sky or securities laws in connection with the Exchange Offer.
(b) The Exchange Notes TCI agrees to prepare and file with the SEC, and use its commercially reasonable efforts to cause to be declared effective (which, if required by the SEC, shall be issued underprior to the commencement of the Exchange Offer), a registration statement under the 1933 Act which will permit the exchange of TCI Stock for shares of Preferred Stock upon conversion thereof to be made in compliance with the 1933 Act and the rules and regulations of the SEC promulgated thereunder (the "TCI Registration Statement").
(c) Subject to the fulfillment of the conditions set forth in Section 6.1, promptly after both the Registration Statement and the TCI Registration Statement (if required pursuant to Section 2.1(b) to be declared effective prior to the commencement of the Exchange Offer) become effective, VI shall commence the Exchange Offer (and file with the SEC a Schedule 13E-4 under the 1934 Act relating to the Exchange Offer), cause the Offering Materials to be mailed to the record holders of its Common Stock and, subject to the terms and conditions of the Exchange Offer and this Agreement, take all action necessary to consummate the Exchange Offer. It is agreed that VI shall have no obligation to make a recommendation to its shareholders concerning the Exchange Offer.
(d) VI shall accept for exchange, in accordance with the terms of the Exchange Offer, shares of VI Common Stock tendered prior to the Expiration Time and not theretofore withdrawn if all Exchange Offer Conditions shall have been satisfied or waived by VI in accordance with the terms of the Exchange Offer. VI agrees that it will not exercise its right to terminate the Exchange Offer as a result of the failure of an Exchange Offer Condition without a reasonable basis for believing that such Exchange Offer Condition has not been satisfied.
(e) VI agrees that it will not accept for exchange shares of VI Common Stock tendered to it in the Exchange Offer and shall extend the Expiration Date (provided that the Expiration Date has not already been extended) if it receives written notice from TCI and TCI Sub to it prior to 5:00 P.M. on the date the Exchange Offer is scheduled to expire that they have determined that any Force Majeure Event has occurred (a "Force Majeure Notice"), provided that TCI and TCI Sub must have a reasonable basis for making such a determination. In the event that a Force Majeure Notice has been delivered to VI and no Force Majeure Event shall exist on the subsequent Expiration Date following extension of the Exchange Offer pursuant to Section 2.3(ii), VI may give written notice to such effect to TCI and TCI Sub prior to 5:00 p.m. on such subsequent Expiration Date, in which case such Force Majeure Notice shall be deemed to be withdrawn and of no further force and effect at 8:59 A.M. on the Business Day following the date such notice is delivered by VI.
(f) TCI and TCI Sub agree to provide VI with such information with respect to TCI, TCI Sub, the Loans and, with respect to any period after the Exchange Time, Old VII or any Cable Division Subsidiary, as is necessary for VI to complete the Registration Statement in accordance with the requirements of the 1933 Act. TCI and TCI Sub covenant that the information supplied or to be supplied by TCI or TCI Sub in writing specifically for inclusion in, and entitled which is included in, the Registration Statement or any amendment or supplement thereto, or the Offering Materials, which concerns TCI, TCI Sub, or the Loans or, with respect to any period after the Exchange Time, Old VII or any Cable Division Subsidiary (the "TCI Information"), will not, at the respective times such documents are filed and at the Expiration Time, and, in the case of the Registration Statement or any amendment or supplement thereto, when the same becomes effective, and, in the case of the Offering Materials, at the time of mailing thereof to VI's stockholders, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or necessary to correct any statement in any earlier communication with respect to the benefits ofExchange Offer. For this purpose, any TCI Information included in any such document will be deemed to have been so supplied in writing specifically for inclusion therein if such document was available for review by TCI a reasonable time before such document was filed and not objected to in writing by TCI prior to the filing thereof. If at any time prior to the Exchange Date any event or circumstance relating to TCI, TCI Sub or any of their Affiliates or their officers or directors, the Loans or, with respect to any period after the Exchange Time Old VII or any Cable Division Subsidiary, should be discovered by TCI which should be set forth in an amendment or supplement to the Registration Statement or Offering Materials, as required by applicable law, TCI shall promptly inform VI. VI and its Affiliates, officers, directors, employees, agents, successors and assigns shall be indemnified and held harmless by TCI and TCI Sub (who shall be jointly and severally liable) for any and all liabilities, losses, damages, claims, costs and expenses (including, without limitation, attorneys' fees and expenses) actually suffered or incurred by them arising out of or resulting from any untrue statement of a material fact contained in the Registration Statement or the Offering Materials, or any omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, if the statement or omission was made in reliance upon and in conformity with the TCI Information.
(g) VI covenants that the information in the Registration Statement and Offering Materials (other than the TCI Information) shall not, at the time (i) the Indenture or a trust indenture that Registration Statement 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 qualifications thereof under the TIA) and declared effective, (ii) the Collateral AgreementsOffering Materials (or any amendment thereof or supplement thereto) is first mailed to the shareholders of VI, and (iii) at the Expiration Time contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. If any time prior to the Exchange Date any event or circumstance relating to VI or any of its Affiliates or its officers or directors, should be discovered by VI which should be set forth in an amendment or a supplement to the Registration Statement or Offering Materials, as required by applicable law, VI shall promptly inform TCI and TCI Sub. TCI, TCI Sub and their Affiliates, officers, directors, employees, agents, successors and assigns shall be indemnified and held harmless by VI for any and all liabilities, losses, damages, claims, costs and expenses (including, without limitation, attorneys' fees and expenses) actually suffered or incurred by them arising out of or resulting from any untrue statement of a material fact contained in the Registration Statement or the Offering Materials, or any omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case except to the extent that the statement or omission was made in reliance upon and in conformity with the TCI Information.
Appears in 1 contract
Exchange Offer. (a) Parent and Unless the Company Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the RRA Parties shall (and shall cause each other Guarantor to) (i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes Notes, to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their commercially reasonable efforts to cause the Exchange Registration Statement to become be declared effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their commercially reasonable efforts to issue on or prior to 30 days thirty (30) Business Days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) and (ii) the Collateral Agreements.
(c) Interest on the Exchange Notes and Private Exchange Notes will accrue from the last interest payment due date on which interest was paid on the Notes, surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes. Each Exchange Note and Private Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Issuer may require each Holder, as a condition to participation in the Exchange Offer, to represent (i) that any Exchange Notes received by it will be acquired in the ordinary course of its business, (ii) that at the time of the commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that if such Holder is an “affiliate” of the Issuer within the meaning of Rule 405 of the Securities Act, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The RRA Parties shall include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for the Notes that were acquired by it as a result of market-making or other trading activity (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the judgment of the Initial Purchasers, represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Issuer shall use its commercially reasonable efforts to keep the Exchange 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 (the “Applicable Period”).
(f) If, upon consummation of the Exchange Offer, any Initial Purchaser holds any Notes acquired by such Initial Purchaser and having the status of an unsold allotment in the initial distribution, the Issuer (upon the written request from such Initial Purchaser) shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to such Initial Purchaser, in exchange (the “Private Exchange”) for the Notes held by such Initial Purchaser, a like principal amount of Senior Secured Notes that are identical to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (the “Private Exchange Notes”) (and which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
(g) In connection with the Exchange Offer, the RRA Parties shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange 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 twenty (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 the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all applicable laws.
(h) As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the RRA Parties shall:
(i) accept for exchange all Registrable Notes validly tendered pursuant to the Exchange Offer or the Private Exchange, as the case may be, and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange.
(i) The Exchange Notes and the Private Exchange Notes may be issued under (i) the Indenture or (ii) an indenture 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), which in either event will provide that the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture, that the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in all the security granted by the RRA Parties pursuant to the Collateral Agreements and in any Subsidiary Guarantee (as such terms are defined in the Indenture) on an equal and ratable basis.
(j) If: (i) prior to the consummation of the Exchange Offer, the Holders of a majority in aggregate principal amount of Registrable Notes determines in its or their reasonable judgment that (A) the Exchange Notes would not, upon receipt, be tradeable by the Holders thereof without restriction under the Securities Act and the Exchange Act and without material restrictions under applicable Blue Sky or state securities laws, or (B) the interests of the Holders under this Agreement, taken as a whole, would be materially adversely affected by the consummation of the Exchange Offer; (ii) applicable interpretations of the staff of the SEC would not permit the consummation of the Exchange Offer prior to the Effectiveness Date; (iii) subsequent to the consummation of the Private Exchange, any Holder of Private Exchange Notes so requests; (iv) the Exchange Offer is not consummated for any reason within the timeframe set forth in Section 2(a)(iv); or (v) in the case of (A) any Holder not permitted by applicable law or SEC policy to participate in the Exchange Offer, (B) any Holder participating in the Exchange Offer that receives Exchange Notes that may not be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Issuer within the meaning of the Securities Act) or (C) any broker-dealer that holds Notes acquired directly from the Issuer or any of its affiliates and, in each such case contemplated by this clause (v), such Holder notifies the Issuer within six months of consummation of the Exchange Offer, then the Issuer shall promptly (and in any event within five Business Days) deliver to the Holders (or in the case of an occurrence of any event described in clause (v) of this Section 2(j), to any such Holder) and the Trustee notice thereof (the “Shelf Notice”) and shall as promptly as possible thereafter file an Initial Shelf Registration pursuant to Section 3.
Appears in 1 contract
Samples: Registration Rights Agreement (Kratos Defense & Security Solutions, Inc.)
Exchange Offer. (a) Parent and Unless the Exchange Offer would violate applicable law or a policy of the SEC or its staff, the Company shall (and shall cause each other Guarantor with respect to its guarantee to) )
(i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”"EXCHANGE REGISTRATION STATEMENT") on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”"EXCHANGE OFFER") to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their commercially its reasonable best efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially its reasonable best efforts to keep the Exchange Registration Statement effective until open for at least 30 days (or longer if required by applicable law) after the consummation date notice of the Exchange Offer in accordance with its termsis mailed to Holders, and (iv) use its reasonable best efforts to commence the Exchange Offer and use their commercially reasonable efforts to issue on or prior to 30 days Business Days after the date on which the Exchange Registration Statement is declared effectiveEffectiveness Date, Exchange Notes in exchange for all Notes validly tendered and not withdrawn prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, ; (ii) no action, suit action or proceeding shall have been instituted or threatened in any court or by any governmental agency which that might materially impair the ability of the Company to proceed with the Exchange Offer, and no material adverse development shall have occurred in any existing action, suit action or proceeding with respect to the Company Company; and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) the Indenture or a trust indenture that is identical to the Indenture in all material respects (other than such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualifications thereof under the TIATIA or exemption from such qualification) and (ii) the Collateral Agreements.
Appears in 1 contract
Samples: Registration Rights Agreement (Mortons Restaurant Group Inc)
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the Commission, the Company shall (and shall cause each other Guarantor to) )
(i) prepare and file with the SEC promptly Commission after the date hereof, but in no event later than the Filing Date, hereof a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their its commercially reasonable efforts to cause have the Exchange Offer Registration Statement to become declared effective as promptly as practicable by the Commission after the filing thereof, but and in no event later than the Effectiveness Target Date, (iii) use their its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their its commercially reasonable efforts to issue issue, on or prior to 30 days after the date on which the Exchange Registration Statement is declared effectiveConsummation Target Date, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange OfferCommission.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 Commission to effect or maintain the qualifications thereof under the TIA).
(c) Interest on the Exchange Notes and Private Exchange Notes will accrue from the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes. Each Exchange Note and Private Exchange Note shall bear interest at the rate set forth thereon.
(d) The Company will require each Holder as a condition to participation in the Exchange Offer to represent (i) that any Exchange Notes received by it will be acquired in the ordinary course of its business, (ii) that at the Collateral Agreementstime of the commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that if such Holder is an “affiliate” of the Company within the meaning of Rule 405 of the Securities Act, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) 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 Notes; (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus in connection with any resale of the Exchange Notes; and (vi) such Holder is not acting on behalf of any Person who could not truthfully make the foregoing representations.
(e) The Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers which shall contain a summary statement of the positions taken or policies made by the staff of the Commission with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the Commission or such positions or policies, in the reasonable judgment of the Initial Purchasers based upon advice of counsel, represent the prevailing views of the staff of the Commission. Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the Commission, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and shall include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such Persons must comply with such requirements in order to resell the Exchange Notes; provided that such period shall not exceed the lesser of 180 days and the date on which all Persons subject to the prospectus delivery requirements of the Securities Act have sold all Exchange Notes held by them (the “Applicable Period”).
(f) If, upon consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them and having the status of an unsold allotment in the initial distribution, the Company (upon the written request from the Initial Purchasers) shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for the Notes held by the Initial Purchasers, a like principal amount of Notes that are identical to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (the “Private Exchange Notes”) (and which are issued pursuant to the same Indenture as the Exchange Notes). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes, if permitted by the CUSIP Services Bureau.
(g) In connection with the Exchange Offer, the Company shall (and shall cause each Guarantor to, to the extent necessary):
(i) mail, or cause to be mailed, 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 20 Business Days after the date that 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 or in Wilmington, Delaware, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Entitled Securities at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all applicable laws related to the Exchange Offer.
(h) As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Company shall (and shall cause each Guarantor to, to the extent necessary):
(i) accept for exchange all Entitled Securities validly tendered pursuant to the Exchange Offer or the Private Exchange, as the case may be, and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Entitled Securities so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Entitled Securities, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange.
(i) The Exchange Notes and the Private Exchange Notes may be issued under (i) the Indenture or (ii) an indenture identical to the Indenture (other than such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA), which in either event will provide that the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture, that the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of securities (subject to the provisions of the Indenture) and entitled to participate in any Guarantee (as such terms are defined in the Indenture) on an equal and ratable basis.
(j) If: (i) the Company and the Guarantors are not permitted to consummate the Exchange Offer because the consummation of the Exchange Offer is not permitted by applicable law or Commission policy, or (ii) in the case of (A) any Holder not permitted by applicable law or Commission policy to participate in the Exchange Offer, (B) any Holder participating in the Exchange Offer that receives Exchange Notes that may not resell such Exchange Notes to the public without delivering a Prospectus and the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales or (C) any broker-dealer that holds Notes acquired directly from the Company or any of its affiliates and, in each such case contemplated by this clause (ii), such Holder notifies the Company prior to the 20th Business Day following consummation of the Exchange Offer, then the Company and the Guarantors shall file a Shelf Registration Statement pursuant to Section 3 (such obligation to file a Shelf Registration Statement, a “Shelf Filing Obligation”) and shall deliver notice thereof within five Business Days to the Holders (or in the case of an occurrence of any event described in clause (ii) of this Section 2(j), to any such Holder) and the Trustee.
Appears in 1 contract
Samples: Registration Rights Agreement (Lantheus Medical Imaging, Inc.)
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Guarantor to) )
(i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “"Exchange Registration Statement”") on an appropriate registration form under the Securities Act with respect to an offer (the “"Exchange Offer”") to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount at maturity of Exchange Notes, (ii) use their commercially its reasonable best efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially its reasonable best efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, terms and (iv) commence the Exchange Offer and use their commercially its reasonable best efforts to issue on or prior to 30 days Business Days after the date on which the Exchange Registration Statement is declared effectiveEffectiveness Date, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes and the Private Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) and which in either case will provide that (i) the Exchange Notes will not be subject to the transfer restrictions or additional interest provisions set forth in the Indenture, (ii) the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture and (iii) the Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in all the security granted by the Company pursuant to the Collateral AgreementsAgreements and in any Guarantee (as such terms are defined in the Indenture) on an equal and ratable basis.
(c) Interest on the Exchange Notes and Private Exchange Notes will accrue from (i) the later of (x) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or (y) if the Note is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (ii) if no interest has been paid on the Notes, from the Issue Date. Each Exchange Note and Private Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to represent to the Company that at the time of the consummation of the Exchange Offer, (i) any Exchange Notes received by such Holder will be acquired in the ordinary course of its business, (ii) at the time of commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) such Holder is not an "affiliate" (as defined in Rule 405 of the Securities Act) of the Company or if such Holder is an affiliate such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Registration Statement a section entitled "Plan of Distribution" which shall contain all of the information that the SEC may require with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making activities or other trading activities (a "Participating Broker-Dealer"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the judgment of the Initial Purchaser, represent the prevailing views of the staff of the SEC. Such "Plan of Distribution" section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its reasonable best efforts to keep the Exchange 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 (the "Applicable Period").
(f) If, upon consummation of the Exchange Offer, the Initial Purchaser holds any Notes acquired by it and having the status of an unsold allotment in the initial distribution, the Company (upon the written request from the Initial Purchaser) shall, simultaneously with the delivery of the Exchange Notes pursuant to the Exchange Offer, issue and deliver to the Initial Purchaser in exchange (the "Private Exchange") for the Notes held by the Initial Purchaser, a like principal amount at maturity of Senior Secured Notes (issued under the same Indenture as the Exchange Notes) that are identical in all material respects to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (the "Private Exchange Notes"). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
(g) In connection with the Exchange Offer, the Company shall (and shall cause each Guarantor to):
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Registration Statement, together with an appropriate letter of transmittal (substantially in the form attached as an exhibit to the Exchange Registration Statement) and any related documents;
(ii) keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice thereof is mailed to the Holders;
(iii) utilize the services of a depository for the Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply with all applicable laws.
(h) As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Company shall (and shall cause each Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered and not withdrawn pursuant to the Exchange Offer or the Private Exchange, as the case may be;
(ii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount at maturity to the Notes of such Holder so accepted for exchange.
(i) If, (i) any change in law or in applicable interpretations thereof by the staff of the SEC would not permit the consummation of the Exchange Offer, (ii) for any other reason the Exchange Registration Statement is not declared effective on or prior to the Effectiveness Date or the Exchange Offer is not consummated within 30 Business Days after the Effectiveness Date, (iii) the Initial Purchaser so requests with respect to the Notes (or the Private Exchange Notes) not eligible to be exchanged for Exchange Notes in the Exchange Offer and held by it following consummation of the Exchange Offer, or (iv) in the case of (A) any Holder not permitted to participate in the Exchange Offer or (B) any Holder participating in the Exchange Offer that receives Exchange Notes that may not be sold or transferred without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and, in either case contemplated by this clause (iv), such Holder notifies the Company within six months of consummation of the Exchange Offer, then in each case the Company shall promptly (and in any event within five Business Days of such notification) deliver to the Holders and the Trustee written notice thereof (the "Shelf Notice") and shall as promptly as practicable and at its sole expense thereafter file an Initial Shelf Registration Statement pursuant to Section 3.
Appears in 1 contract
Exchange Offer. (a) Parent and Unless the Company Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuer shall (and shall cause each other Guarantor to) (i) prepare and use its commercially reasonable efforts to file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form under the Securities Act with respect to an a registered offer (the “Exchange Offer”) to exchange any and all of the Holders Registrable Securities for a like aggregate principal amount of Notes debt securities of the Issuer (the “Exchange Notes”), guaranteed, to issue and deliver the extent applicable, on a senior unsecured basis by the Guarantors (the “New Guarantees” and, together with the Exchange Notes, the “Exchange Securities”) that are identical in all material respects to such Holders, in exchange for the Notes, a like principal amount of except that (i) the Exchange NotesNotes shall contain no restrictive legend thereon, (ii) interest thereon shall accrue (A) from the later of (a) the last date on which interest was paid on such Note or (b) if the Note is surrendered for exchange on a date in a period that includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B) if no such interest has been paid, from the Issue Date and (iii) the Exchange Securities shall be entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuer shall use their its commercially reasonable efforts to (x) prepare and file with the SEC the Exchange Offer Registration Statement with respect to the Exchange Offer; (y) keep the Exchange Offer open for at least 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) cause the Exchange Offer Registration Statement to become be declared effective under the Securities Act on or prior to July 25, 2014 (or if such day is not a Business Day, the next succeeding Business Day). Each Holder (including, without limitation, each Participating Broker-Dealer) that participates in the Exchange Offer, as promptly as practicable after a condition to participation in the filing thereofExchange Offer, but will be required to represent to the Issuer in no event later than writing (which may be contained in the Effectiveness Dateapplicable letter of transmittal) that: (i) any Exchange Securities acquired in exchange for Registrable Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Securities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Securities from such Holder has an arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the Securities Act; (iii) use neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Issuer or, if it is an affiliate of the Issuer, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their commercially reasonable efforts Securities included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to keep the actual knowledge of such Holder, any other Person receiving Exchange Securities from such Holder is engaging or intends to engage in a distribution of the Exchange Registration Statement effective until Securities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder). Upon consummation of the Exchange Offer in accordance with its termsthis Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Notes (and the related Guarantees), any Exchange Securities as to which Section 2(c)(iv) is applicable and Exchange Securities held by the Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (ivother than Private Exchange Notes (and the related Guarantees) commence and Exchange Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof.
(b) The Issuer shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Securities in compliance with the Securities Act. The Issuer shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Holders (including Participating Broker-Dealers) subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Securities; provided, however, that in no event shall the Issuer be required to keep the Exchange Offer Registration Statement effective and available for more than 180 days after consummation of the Exchange Offer, or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, immediately prior to consummation of the Exchange Offer, the Initial Holders hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuer, upon the written request of the Initial Holders, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Holders, in exchange (the “Private Exchange”) for such Notes held by any such Initial Holder, a like principal amount of notes (including the guarantees with respect thereto, the “Private Exchange Notes”) of the Issuer, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuer shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 20 Business Days from the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all laws, rules and regulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and use their commercially reasonable efforts any Private Exchange, the Issuer shall:
(1) accept for exchange all Registrable Securities validly tendered and not validly withdrawn pursuant to issue on or prior to 30 days after the date on which the Exchange Registration Statement is declared effectiveOffer and any Private Exchange;
(2) deliver to the Trustee for cancellation all Registrable Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in exchange principal amount to the Notes of such Holder so accepted for all Notes tendered prior thereto exchange; provided that, in the Exchange Offercase of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, ; (ii) no action, suit 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 Issuer to proceed with the Exchange OfferOffer or the Private Exchange, and no material adverse development shall have occurred in any existing action, suit action or proceeding with respect to the Company Issuer; and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably Issuer deems necessary for the consummation of the Exchange Offer.
(b) Offer or Private Exchange. The Exchange Securities and the Private Exchange Notes (and related guarantees) shall be issued under, and entitled to the benefits of, under (i) the Indenture or a trust (ii) an indenture that is identical in all material respects to the Indenture (other than and which, in either case, has been qualified under the TIA or is exempt from such changes 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 Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as are necessary to comply with any requirements one class and that none of the SEC Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuer is not permitted to effect or maintain the qualifications thereof under the TIA) and Exchange Offer,
(ii) the Collateral AgreementsExchange Offer Registration Statement is not declared effective on or prior to July 25, 2014, (iii) any holder of Private Exchange Notes so requests in writing to the Issuer at any time within 30 days after the consummation of the Exchange Offer, or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Securities on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Issuer within the meaning of the Securities Act) and so notifies the Issuer in writing within 30 days after such Holder first becomes aware of such restrictions, then, in the case of each of clauses (i) through (iv) of this sentence, the Issuer shall promptly deliver to the Trustee with a copy to the registrar (to deliver to the Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Tuition Finance, Inc.)
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Guarantor to) (i) prepare and file with the SEC promptly after the date hereofSEC, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their its commercially reasonable efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their its commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their its commercially reasonable efforts to issue on or prior to 30 days 60 Business Days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) the Indenture or a trust indenture that is substantially identical to the Indenture (other than such changes as are necessary to comply with any requirements of applicable law or the SEC to effect or maintain the qualifications thereof under the TIA).
(c) Interest on the Exchange Notes will accrue from (i) the later of (x) the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or (y) if the Note is surrendered for exchange after the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (ii), if no interest has been paid on the Notes, from the Closing Date. Each Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to represent (i) that any Exchange Notes received by such Holder will be acquired in the ordinary course of its business, (ii) that at the Collateral Agreementstime of the commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that if such Holder is an “affiliate” of the Company within the meaning of Rule 405 of the Securities Act, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer (as defined below), that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers, which shall contain all of the information that the SEC may require with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity and from whom the Company has received written notice that such broker-dealer will be a Participating Broker-Dealer in the applicable Exchange Offer (a “Participating Broker-Dealer”). Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its commercially reasonable efforts to keep the Exchange Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by Participating Broker-Dealers for such period of time as such Persons must comply with such requirements in order to resell the Exchange Notes; provided, that such period shall not exceed the lesser of 180 days and the date on which all Participating Broker Dealers have sold all Exchange Notes held by them (the “Applicable Period”).
Appears in 1 contract
Samples: Registration Rights Agreement (Acadia Healthcare Company, Inc.)
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Subsidiary Guarantor to) (i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their commercially reasonable efforts to issue on or prior to 30 days Business Days, or longer, if required by applicable securities laws, after the date on which the Exchange Offer Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in accordance with the terms of the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit or proceeding shall have been instituted or threatened in any court or SEC and other than permitted by any governmental agency which might materially impair the ability of the Company to proceed with the Exchange Offer, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange OfferSection 2(d).
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) the Original Indenture or a trust indenture that is identical to the Original Indenture (other than such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualifications thereof under the TIA).
(c) and Interest on the Exchange Notes will accrue from the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from August 15, 2012. Each Exchange Note shall bear interest at the rate set forth thereon; provided, however, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to make such representations as may be required by applicable law or any applicable interpretation of the staff of the SEC, including (i) that any Exchange Notes received by it will be acquired in the ordinary course of its business, (ii) that at the Collateral Agreementstime of the commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that if such Holder is an “affiliate” of the Company within the meaning of Rule 405 of the Securities Act, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Subsidiary Guarantor to) include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the applicable positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the reasonable judgment of the Initial Purchasers, represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such Persons must comply with such requirements in order to resell the Exchange Notes (the “Applicable Period”).
(f) In connection with the Exchange Offer, the Company shall (and shall cause each Subsidiary Guarantor to):
(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 depository for the Exchange Offer with an address in the Borough of Manhattan, the City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Entitled Securities 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 in all material respects with all applicable laws.
(g) As soon as practicable after the close of the Exchange Offer, the Company shall (and shall cause each Subsidiary Guarantor to):
(i) accept for exchange all Entitled Securities validly tendered pursuant to the Exchange Offer and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Entitled Securities so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Entitled Securities, Exchange Notes equal in principal amount to the Notes of such Holder so accepted for exchange.
(h) The Exchange Notes shall be issued under the Original 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 and the notes of the Company previously issued under the Original Indenture will be deemed one class of security (subject to the provisions of the Original Indenture) and entitled to participate in any Subsidiary Guarantee (as such term is defined in the Original Indenture) on an equal and ratable basis.
(i) If (1) the Company and the Subsidiary Guarantors are not required to file the Exchange Offer Registration Statement or permitted to consummate the Exchange Offer because the Exchange Offer is not permitted by applicable law or SEC policy; or (2) any holder of Entitled Securities notifies the Company prior to the consummation of the Exchange Offer that (A) it is prohibited by law or SEC policy from participating in the Exchange Offer; (B) it may not resell the Exchange Notes acquired by it in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales; or (C) it is a broker-dealer and owns Notes acquired directly from the Company or an affiliate of the Company, then the Company shall promptly (and in any event within five Business Days) deliver to the Holders and the Trustee notice thereof (the “Shelf Notice”) and shall as promptly as possible thereafter (but in no event later than the Shelf Filing Date) file an Initial Shelf Registration pursuant to Section 3 hereof to cover resales of the Notes by the holders of the Notes who satisfy certain conditions relating to the provision of information in connection with the Shelf Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Epl Oil & Gas, Inc.)
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Guarantor to) (i) prepare and file with the SEC promptly after the date hereofSEC, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their its commercially reasonable efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their its commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their its commercially reasonable efforts to issue on or prior to 30 days 60 Business Days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) the Indenture or a trust indenture that is substantially identical to the Indenture (other than such changes as are necessary to comply with any requirements of applicable law or the SEC to effect or maintain the qualifications thereof under the TIA).
(c) Interest on the Exchange Notes will accrue from (i) the later of (x) the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or (y) if the Note is surrendered for exchange after the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (ii), if no interest has been paid on the Notes, from the Closing Date. Each Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to represent (i) that any Exchange Notes received by such Holder will be acquired in the ordinary course of its business, (ii) that at the Collateral Agreementstime of the commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that if such Holder is an “affiliate” of the Company within the meaning of Rule 405 of the Securities Act, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer (as defined below), that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchaser which shall contain all of the information that the SEC may require with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity and from whom the Company has received written notice that such broker-dealer will be a Participating Broker-Dealer in the applicable Exchange Offer (a “Participating Broker-Dealer”). Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its commercially reasonable efforts to keep the Exchange Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by Participating Broker-Dealers for such period of time as such Persons must comply with such requirements in order to resell the Exchange Notes; provided, that such period shall not exceed the lesser of 180 days and the date on which all Participating Broker Dealers have sold all Exchange Notes held by them (the “Applicable Period”).
Appears in 1 contract
Samples: Registration Rights Agreement (Acadia Healthcare Company, Inc.)
Exchange Offer. (a) Parent and the Company The Issuer shall (and shall cause each other Guarantor to) (iA) prepare and file with the SEC promptly after on or prior to the date hereof, but in no event later than applicable Filing Date with respect to the Filing Date, a registration statement (the “Exchange Registration Statement”Statement (as defined below) on an appropriate form a Registration Statement under the Securities Act with respect to an offer (by the “Exchange Offer”) Company to the Holders holders of the Notes to issue and deliver to such Holdersholders, in exchange for the Notes, a like principal amount of Exchange NotesNotes (the "Exchange Offer"), (iiB) use their commercially its reasonable efforts to cause the Exchange Registration Statement relating to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, to be declared effective by the SEC under the Securities Act on or prior to the Effectiveness Date and (ivC) commence the Exchange Offer and use their commercially its reasonable efforts to issue issue, on or prior to 30 180 days after the date on which Issue Date, the Exchange Registration Statement is declared effective, Notes. The offer and sale of the Exchange Notes in exchange for all Notes tendered prior thereto in pursuant to the Exchange OfferOffer shall be registered pursuant to the Securities Act on the appropriate form (the "Exchange Registration Statement") and duly registered or qualified under all applicable state securities or Blue Sky laws and will comply with all applicable tender offer rules and regulations under the Exchange Act and state securities or Blue Sky laws. The Exchange Offer shall not be subject to any conditionscondition, other than that (i) the Exchange Offer does not violate any applicable law or applicable rule, regulation or interpretation of the staff of the SEC. Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuer shall have no further registration obligations other than with respect to (i) Private Exchange Notes, (ii) no action, suit Exchange Notes held by Participating Broker-Dealers and (iii) Notes or proceeding Exchange Notes as to which Section 3(a) hereof applies. No securities shall have been instituted or threatened be included in any court or by any governmental agency the Exchange Registration Statement other than the Exchange Notes.
(b) The Issuer may require each holder of Notes as a condition to its participation in the Exchange Offer to represent to the Issuer and its counsel in writing (which might materially impair may be contained in the ability applicable letter of transmittal) that at the time of the Company consummation of the Exchange Offer (i) any Exchange Notes received by such holder will be acquired in the ordinary course of its business, (ii) such holder will have no arrangement or understanding with any Person to proceed participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes, (iii) such holder is not an Affiliate of an Issuer, or if it is an Affiliate of an Issuer, it will comply with the registration and prospectus delivery requirements of the Securities Act, to the extent applicable and (iv) if such holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for the Notes that were acquired as a result of market-making or other trading activities, that it will deliver a Prospectus in connection with any resale of such Exchange Notes. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Notes acquired by it and no having, or that are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, or any other holder of Notes is not entitled to participate in the Exchange Offer, the Company upon the request of such Initial Purchaser or any such holder shall, to the extent permitted by applicable law and the rules and regulations of The Depository Trust Company, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to such Initial Purchaser and any such holder, in exchange (the "Private Exchange") for such Notes held by such Initial Purchaser and any such holder, a like principal amount of debt securities of the Company that are identical in all material adverse development respects to the Exchange Notes (the "Private Exchange Notes") (and that are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes. The Issuer and the Initial Purchasers acknowledge that the staff of the SEC has taken the position that any broker-dealer that owns Exchange Notes that were received by such broker-dealer for its own account in the Exchange Offer (a "Participating Broker-Dealer") may be deemed to be an "underwriter" within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Issuer and the Initial Purchasers also acknowledge that it is the SEC staff's position that if the Prospectus contained in the Exchange Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if and for so long as a Prospectus is required to be delivered by a Participating Broker-Dealer and if so requested by a Participating Broker-Dealer, the Issuer agrees (x) to use its best efforts to keep the Exchange Registration Statement continuously effective for a period of up to 180 days or such earlier date as each Participating Broker-Dealer shall have occurred notified the Company in any existing actionwriting that such Participating Broker-Dealer has resold all Exchange Notes acquired in the Exchange Offer (the "Applicable Period") and (y) to comply with the provisions of Section 5 of this Agreement, suit or proceeding with respect as they relate to the Company Exchange Offer and the Exchange Registration Statement. Interest on the Exchange Notes and the Private Exchange Notes will accrue from (A) the later of (i) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor and (ii) if the 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 such exchange and as to which interest will be paid, the date on such interest payment date or (B), if no interest has been paid on the Notes, from the Issue Date. In connection with each Exchange Offer, the Issuer shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange a copy of the Prospectus forming part of the Exchange Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use its best efforts to keep the Exchange Offer open for not less than 20 business days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last business day on which the Exchange Offer shall remain open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the applicable Exchange Offer and the applicable Private Exchange, if any, the Issuer shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the applicable Exchange Offer and the applicable Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange and cause the Trustee to authenticate and deliver promptly to each Holder Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the securities of such Holder so accepted for exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and that, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in such indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuer is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 225 days of the Issue Date, (iii) all governmental approvals shall have been obtained, which approvals any holder of any Private Exchange Notes so requests in writing to the Company reasonably deems necessary for Issuer within 45 days after the consummation of the Exchange Offer.
, or (biv) The in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes shall on the date of the exchange that may be issued under, sold without restriction under state and entitled federal securities laws (other than due solely to the benefits ofstatus of such Holder as an affiliate of the Issuer within the meaning of the Securities Act) (it being understood that the requirement that a Participating Broker-Dealer deliver a Prospectus in connection with sales of Exchange Notes acquired in the Exchange Offer in exchange for Notes acquired as a result of market-making activities or other trading activities shall not result in such Exchange Notes being not "freely tradable"), then in the case of each of clauses (i) to and including (iv) of this sentence, the Indenture or a trust indenture that is identical Issuer shall promptly deliver to the Indenture Holders and the Trustee written notice thereof (other than such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualifications thereof under the TIA"Shelf Notice") and (ii) the Collateral Agreementsshall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Flextronics International LTD)
Exchange Offer. (a) Parent and Unless the Exchange Offer would violate applicable law or a policy of the SEC or its staff, the Company shall upon the written demand of holders (and shall cause a “Demand Registration Request”) of a majority in principal amount of the Registrable Notes given, on not more than one occasion at any time commencing three months after the first to occur of the effectiveness of any registered public offering for cash of common stock of the Company or any parent holding company of the Company or of debt securities of the Company or any of its subsidiaries or any such holding company (each other Guarantor to) such date, a “Demand Date”)
(i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the an “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until Offer open for at least 20 Business Days (or longer if required by applicable law) after the consummation date notice of the Exchange Offer in accordance with its termsis mailed to Holders, and (iv) commence use commercially reasonable efforts to consummate the Exchange Offer and use their commercially reasonable efforts to issue issue, on or prior to 30 days Business Days after the date on which Effectiveness Date (such period, the “Exchange Registration Statement is declared effectiveOffer Period”), Exchange Notes in exchange for all Notes validly tendered and not withdrawn prior thereto in the Exchange Offer. The An Exchange Offer shall not be subject to any conditions, other than that (i1) the an Exchange Offer does not violate any applicable law or applicable rule, regulation or interpretation policy of the staff of the SEC, SEC or its staff; (ii2) no action, suit action or proceeding shall have been instituted or threatened in any court or by any governmental agency which that might materially impair the ability of the Company to proceed with the an Exchange Offer, and no material adverse development shall have occurred in any existing action, suit action or proceeding with respect to the Company Company; and (iii3) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the an Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, the Indenture.
(c) Interest on each of the Exchange Notes will be payable from the later of (x) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor, or (y) if the Notes are surrendered for exchange on a date within a period on or after the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to represent (i) that any Exchange Notes received by it will be acquired in the Indenture ordinary course of its business, (ii) that at the time of the commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that such Holder is not an affiliate of the Company within the meaning of the Securities Act, or, if it is an affiliate of the Company, that it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) if such Holder is not a trust indenture broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Notes and (v) if such Holder is a Participating Broker-Dealer, that such Holder will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, and that it will deliver a Prospectus in connection with any resale of the Exchange Notes and otherwise comply with the applicable provisions of the Securities Act with respect to such resale.
(e) The Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution” which shall contain all information that the SEC may require with respect to the potential “underwriter” status of any broker-dealer that is identical the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity (a “Participating Broker-Dealer”). Such “Plan of Distribution” section shall allow, to the Indenture (extent permitted by applicable policies and regulations of the SEC, or other than applicable law, the use of the Prospectus by all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. 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 changes Prospectus to be lawfully delivered by all Participating Broker-Dealers subject to the prospectus delivery requirements of the Securities Act for such period of time as are is necessary to comply with applicable law in connection with the resale by such Participating Broker-Dealers of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days (unless such period is extended pursuant to the third to last paragraph of Section 5 below) (the “Applicable Period”).
(f) In connection with the Exchange Offer, the Company shall:
(i) mail or cause to be mailed to each Holder of record a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) utilize the services of a depository for the Exchange Offer with an address in the Borough of Manhattan, the City of New York, which may be the Trustee or an affiliate thereof;
(iii) permit Holders to withdraw tendered Registrable Notes at any requirements time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(iv) otherwise comply in all material respects with all applicable laws.
(g) As soon as practicable after the close of the Exchange Offer the Company shall:
(i) accept for exchange all Registrable Notes validly tendered pursuant to the Exchange Offer and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver to each Holder, Exchange Notes equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depository, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement.
(h) If, (i) applicable interpretations of the staff of the SEC to effect or maintain other legal requirements would not permit the qualifications thereof under consummation of the TIA) and Exchange Offer as contemplated by this Section 2 or (ii) in the Collateral Agreementscase of any Holder that participates in the Exchange Offer, but does not receive Exchange Notes that it may resell to the public without delivering a prospectus and the prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act), then, in each case, the Company shall promptly deliver to the Holders and the Trustee, if any, written notice thereof (the “Shelf Notice”) and shall on one and only one occasion file a Shelf Registration Statement pursuant to Section 3.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Berry Plastics Holding Corp)
Exchange Offer. (a) Parent and the Company The Issuers shall (and shall cause each other Guarantor to) (iA) prepare and file with the SEC promptly after the date hereof, but in no event later than on or prior to the Filing Date, a registration statement (Date with respect to the “Exchange Registration Statement”Statement (as defined below) on an appropriate form a Registration Statement under the Securities Act with respect to an offer (by the “Exchange Offer”) Company to the Holders holders of the Notes to issue and deliver to such Holdersholders, in exchange for the Notes, a like principal amount of Exchange NotesNotes (the "Exchange Offer"), (iiB) use their commercially reasonable best efforts to cause the Exchange Registration Statement relating to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, to be declared effective by the SEC under the Securities Act on or prior to the Effectiveness Date and (ivC) commence the Exchange Offer and use their commercially reasonable best efforts to issue issue, on or prior to 30 180 days after the date on which Issue Date, the Exchange Registration Statement is declared effective, Notes. The offer and sale of the Exchange Notes in exchange for all Notes tendered prior thereto in pursuant to the Exchange OfferOffer shall be registered pursuant to the Securities Act on the appropriate form (the "Exchange Registration Statement") and duly registered or qualified under all applicable state securities or Blue Sky laws and will comply with all applicable tender offer rules and regulations under the Exchange Act and state securities or Blue Sky laws. The Exchange Offer shall not be subject to any conditionscondition, other than that (i) the Exchange Offer does not violate any applicable law or applicable rule, regulation or interpretation of the staff of the SEC. Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuers shall have no further registration obligations other than with respect to (i) Private Exchange Notes, (ii) no action, suit Exchange Notes held by Participating Broker-Dealers and (iii) Notes or proceeding Exchange Notes as to which Section 3(a)(iii) hereof applies. No securities shall have been instituted or threatened be included in any court or by any governmental agency the Exchange Registration Statement other than the Exchange Notes.
(b) The Issuers may require each holder of Notes as a condition to its participation in the Exchange Offer to represent to the Issuers and their counsel in writing (which might materially impair may be contained in the ability applicable letter of transmittal) that at the time of the Company consummation of the Exchange Offer (i) any Exchange Notes received by such holder will be acquired in the ordinary course of its business, (ii) such holder will have no arrangement or understanding with any Person to proceed participate in 8 the distribution (within the meaning of the Securities Act) of the Exchange Notes, (iii) such holder is not an Affiliate of an Issuer, or if it is an Affiliate of an Issuer, it will comply with the registration and prospectus delivery requirements of the Securities Act, to the extent applicable and (iv) if such holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for the Notes that were acquired as a result of market-making or other trading activities, that it will deliver a Prospectus in connection with any resale of such Exchange Notes. If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by it and no having, or that are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, or any other holder of Notes is not entitled to participate in the Exchange Offer, the Company upon the request of such Initial Purchaser or any such holder shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to such Initial Purchaser and any such holder, in exchange (the "Private Exchange") for such Notes held by such Initial Purchaser and any such holder, a like principal amount of debt securities of the Company, guaranteed by each of the Guarantors on a senior subordinated basis, that are identical in all material adverse development respects to the Exchange Notes (the "Private Exchange Notes") (and that are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes. The Issuers and the Initial Purchasers acknowledge that the staff of the SEC has taken the position that any broker-dealer that owns Exchange Notes that were received by such broker-dealer for its own account in the Exchange Offer (a "Participating Broker-Dealer") may be deemed to be an "underwriter" within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer, the Issuers agree (x) to use their best efforts to keep the Exchange Registration Statement continuously effective for a period of up to 180 days or such earlier date as each Participating Broker-Dealer shall have occurred notified the Company in any existing actionwriting that such Participating Broker-Dealer has resold all Exchange Notes acquired in the Exchange Offer (the "Applicable Period"), suit or proceeding (y) to comply with respect the provisions of Section 5 of this Agreement, as they relate to the Company Exchange Offer and the Exchange Registration Statement, and (z) to deliver to such Participating Broker-Dealer a "cold comfort" letter of the independent public accountants of the Issuers and a legal opinion as to matters reasonably requested by such Participating Broker-Dealer relating to the Exchange Registration Statement and the related Prospectus and any amendments or supplements thereto. Interest on the Exchange Notes and the Private Exchange Notes will accrue from (A) the later of (i) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor and (ii) if the 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 such exchange and as to which interest will be paid, the date on such interest payment date or (B), if no interest has been paid on the Notes, from the Issue Date. In connection with each Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange a copy of the Prospectus forming part of the Exchange Registration Statement, together with an appropriate letter of transmittal and related documents;
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last business day on which the Exchange Offer shall remain open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the applicable Exchange Offer and the applicable Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the applicable Exchange Offer and the applicable Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange and cause the Trustee to authenticate and deliver promptly to each Holder Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the securities of such Holder so accepted for exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and that, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in such indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 180 days of 11 -10- the Issue Date, (iii) all governmental approvals shall have been obtained, which approvals any holder of any Private Exchange Notes so requests in writing to the Company reasonably deems necessary for Issuers within 30 days after the consummation of the Exchange Offer.
, or (biv) The in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes shall on the date of the exchange that may be issued under, sold without restriction under state and entitled federal securities laws (other than due solely to the benefits ofstatus of such Holder as an affiliate of the Issuers within the meaning of the Securities Act), then in the case of each of clauses (i) to and including (iv) of this sentence, the Indenture or a trust indenture that is identical Issuers shall promptly deliver to the Indenture Holders and the Trustee written notice thereof (other than such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualifications thereof under the TIA"Shelf Notice") and (ii) the Collateral Agreementsshall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Parent and the Company shall (and shall cause each other Guarantor to) The Issuer shall: ----------------
(i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the ------------------------------------- Securities Act with respect to an a proposed offer (the “"Exchange Offer”") to the -------------- Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like aggregate principal amount of Exchange Notes, ,
(ii) use their commercially reasonable its best efforts to cause the Exchange Offer Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, ,
(iii) use their commercially reasonable efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer in accordance with pursuant to its terms, and and
(iv) unless the Exchange Offer would not be permitted by a policy of the SEC, commence the Exchange Offer and use their its commercially reasonable efforts to issue issue, on or prior to 30 days after the date on which the Exchange Offer Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications qualification thereof under the TIA).
(c) 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 that is an exhibit to the Exchange Offer Registration Statement, and any related documents;
(ii) keep the Collateral AgreementsExchange 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 in all material respects with all laws applicable to the Exchange Offer.
(d) As soon as practicable after the close of the Exchange Offer, the Issuer 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, Series B Notes equal in aggregate principal amount to the Series A Notes of such Holder so accepted for exchange and Series D Notes equal in aggregate principal amount to the Series C Notes of such Holder so accepted for exchange.
(e) Interest on each Exchange Security will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes. Each Exchange Security shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes surrendered in exchange therefor from time to time during such period.
(f) The Issuer shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled "Plan of Distribution," -------------------- containing a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"). Such "Plan of Distribution" section --------------------------- -------------------- shall also allow the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including (without limitation) all Participating Brokers-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes. The Issuer shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirement of the Securities Act for such period of time as such Persons must comply with such requirements in order to resell the Exchange Notes (the "Applicable Period"). -----------------
(g) The Issuer may require each Holder participating in the Exchange Offer to represent to the Issuer that, at the time of the consummation of the Exchange Offer, (i) any Exchange Notes received by such Holder in the Exchange Offer will be acquired in the ordinary course of its business, (ii) such Holder will have no arrangement or understanding with any Person to participate in the distribution of the Exchange Notes within the meaning of the Securities Act or resale of the Exchange Notes in violation of the Securities Act, (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 the Exchange Notes, (iv) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, that it will deliver a prospectus, as required by law, in connection with any resale of such Exchange Notes, and (v) if such Holder is an affiliate of the Issuer, that it will comply with the registration and prospectus delivery requirements of the Securities Act applicable to it.
(h) If (i) the Issuer is not required to file the Exchange Offer Registration Statement or permitted to consummate the Exchange Offer because the Exchange Offer is not permitted by applicable law or SEC policy or (ii) any Holder of Transfer Restricted Securities notifies the Issuer prior to the 20th day following consummation of the Exchange Offer (A) that such Holder is prohibited by law or SEC policy from participating in the Exchange Offer or (B) that such Holder may not resell the Exchange Notes acquired by such holder in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales or (C) that it is a broker-dealer and owns Notes acquired directly from the Issuer or an affiliate of the Issuer, then the Issuer shall promptly deliver to the Holders (or in the case of any occurrence of the event described in clause (ii) hereof, to any such Holder) and the Trustee notice thereof (the "Shelf Notice") and shall as promptly as ------------ possible thereafter file with the SEC a Shelf Registration Statement pursuant to Section 3 to cover resales of the Notes by the holders thereof who satisfy certain conditions outlined in Section 3(a) relating to the provision of information in connection with the Shelf Registration Statement.
Appears in 1 contract
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Subsidiary Guarantor to) (i) prepare and file with the SEC as promptly after the date hereof, but in no event later than the Filing Dateas practicable, a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their its commercially reasonable efforts to cause the Exchange Offer Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Target Date, (iii) use their its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their its commercially reasonable efforts to issue on or prior to 30 days Business Days, or longer, if required by applicable securities laws, after the date on which the Exchange Offer Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in accordance with the terms of the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA).
(c) and Interest on the Exchange Notes will accrue from the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes. Each Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to make such representations as may be required by applicable law or any applicable interpretation of the staff of the SEC, including (i) that any Exchange Notes received by it will be acquired in the ordinary course of its business, (ii) that at the Collateral Agreementstime of the commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that if such Holder is an “affiliate” of the Company within the meaning of Rule 405 of the Securities Act, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, a distribution of the Notes and (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Subsidiary Guarantor to) include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the judgment of the Initial Purchasers, represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for a period (the “Applicable Period”) beginning when the Exchange Securities are first issued in the Exchange Offer and ending on the earlier of the expiration of the 180th day after the Exchange Offer has been completed or such time as such Participating Broker-Dealers no longer hold Transfer Restricted Securities.
(f) [Intentionally Omitted].
(g) In connection with the Exchange Offer, the Company shall (and shall cause each Subsidiary Guarantor to):
(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 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law)
(iii) utilize the services of a depository for the Exchange Offer with an address in the Borough of Manhattan, the City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Transfer Restricted Securities 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 in all material respects with all applicable laws.
(h) As soon as practicable after the close of the Exchange Offer, the Company shall (and shall cause each Subsidiary Guarantor to):
(i) accept for exchange all Transfer Restricted Securities validly tendered pursuant to the Exchange Offer and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Transfer Restricted Securities so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Transfer Restricted Securities, Exchange Notes equal in principal amount to the Notes of such Holder so accepted for exchange.
(i) The Exchange Notes may be issued under (i) the Indenture or (ii) an indenture 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), which in either event will provide that the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in any Subsidiary Guarantee (as such terms are defined in the Indenture) on an equal and ratable basis.
Appears in 1 contract
Samples: Registration Rights Agreement (Bonanza Creek Energy, Inc.)
Exchange Offer. (a) Parent and the Company shall (and shall cause each other Guarantor to) (i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their commercially reasonable able best efforts to cause the Exchange Registration Statement (as defined) to become be declared effective as promptly as practicable after by the filing thereof, but in no event later than SEC under the Securities Act on or prior to the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (ivC) commence the Exchange Offer and use their commercially reasonable best efforts to issue issue, on or prior to 30 195 days after the date on which Issue Date, the Exchange Registration Statement is declared effective, Notes. The offer and sale of the Exchange Notes in exchange for all Notes tendered prior thereto in pursuant to the Exchange OfferOffer shall be registered pursuant to the Securities Act on an appropriate form (the "Exchange Registration Statement") and duly registered or qualified under all applicable state securities or Blue Sky laws and will comply with all applicable tender offer rules and regulations under the Exchange Act and state securities or Blue Sky laws. The Exchange Offer and Private Exchange shall not be subject to any conditionscondition, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate any law applicable laws, rules, regulations or applicable rule, regulation or interpretation interpretations of the staff of the SEC, (ii) no action, suit action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might would be reasonably likely to materially impair the ability of the Company Issuer to proceed with the Exchange OfferOffer or the Private Exchange, and no material adverse development shall have occurred in any existing action, suit action or proceeding with respect to the Company Issuer and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably Issuer deems necessary for the consummation of the Exchange OfferOffer or the Private Exchange. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply solely with respect to Registrable Notes that are Private Exchange Notes and Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Issuer and the Guarantors shall have no further obligations to register Registrable Notes (other than Private Exchange Notes and other than in respect of any Exchange Notes as to which Section 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities shall be included in the Exchange Registration Statement other than the Exchange Notes. Notes and (iii) such Holder is not an Affiliate of the Issuer or any of the Guarantors.
(b) The Issuer shall include within the Prospectus contained in the Exchange Registration Statement a section entitled "Plan of Distribution" which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such "Plan of Distribution" section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuer shall use its reasonable best efforts to keep the Exchange Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes covered thereby; provided, however, that such period shall not exceed 90 days after the consummation of the Exchange Offer (or such longer period if extended pursuant to the last paragraph of Section 5 hereof) (the "Applicable Period"). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them and having, or which are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, the Issuer, upon the request of the Initial Purchasers, shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to such Initial Purchasers, in exchange (the "Private Exchange") for such Notes held by the Initial Purchasers, a like principal amount of debt securities of the Issuer, that are identical in all material respects to the Exchange Notes (the "Private Exchange Notes") (except that they may bear a customary legend with respect to restrictions 10 - 9 - on transfer). The Private Exchange Notes shall be issued underpursuant to the same indenture as the Exchange Notes and shall bear the same CUSIP number as the Exchange Notes. Interest on the Exchange Notes and the Private Exchange Notes will accrue from (A) the later of (i) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or (ii) if the Notes are surrendered for exchange on a date subsequent to the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, and the date of such interest payment or (B) if no interest has been paid on the Notes, from the date of the original issuance of the Notes. In connection with the Exchange Offer, the Issuer shall:
(1) mail, or cause to be mailed, to each Holder of Notes entitled to participate in the benefits ofExchange Offer a copy of the Prospectus forming part of the Exchange Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) keep the Exchange Offer open for not less than 20 Business Days after the date that notice of the Exchange Offer is mailed to Holders of Notes (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, the City of New York;
(4) permit Holders of Notes 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
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer or the Private Exchange, if any, the Issuer shall:
(2) deliver to the Trustee for cancellation all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Notes and the Private Exchange Notes may be issued under (i) the Indenture or a trust (ii) an indenture that is identical in all material respects to the Indenture, which in either event shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that neither the Exchange Notes, the Private Exchange Notes nor the Notes will have the right to vote or consent as a separate class on any matter.
(other than such changes as are necessary to comply with c) If, (i) because of any requirements change in law or in currently prevailing interpretations of the SEC staff of the SEC, the Issuer and the Guarantors are not permitted to effect or maintain the qualifications thereof under the TIA) and Exchange Offer, (ii) the Collateral AgreementsExchange Offer is not consummated within 195 days of the Issue Date, (iii) any Holder of Private Exchange Notes so requests in writing to the Issuer at any time after the consummation of the Exchange Offer, or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under federal securities laws (other than due solely to the status of such Holder as an Affiliate of the Issuer within the meaning of the Securities Act or any prospectus delivery requirements applicable to such Holder) and so notifies the Issuer within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuer shall promptly deliver to the Holders of the Notes and the Trustee written notice thereof (the "Shelf Notice") and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Caterair International Inc /Ii/)
Exchange Offer. (a) Parent The Company and the Company shall (and shall cause each other Guarantor to) shall: (i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the Securities Act with respect to an a proposed offer (the “"Exchange Offer”") to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like aggregate principal amount of Exchange NotesSecurities, (ii) use their commercially respective reasonable best efforts to cause the Exchange Registration Offer Xxxxxxxx- tion Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Target Date, (iii) use their commercially respective reasonable best efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer in accordance with pursuant to its terms, and (iv) unless the Exchange Offer would not be permitted by a policy of the SEC, commence the Exchange Offer and use their commercially respective reasonable best efforts to issue to, on or prior to 30 days the earliest practicable date after the date on which the Exchange Offer Registration Statement is declared effective, but in no event later than 30 Business Days thereafter, consummate the Exchange Notes Offer and issue Exchange Securities in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes Securities shall be issued under, and entitled to the benefits of, (i) 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 qualifications qualification thereof under the TIA).
(c) In connection with the Exchange Offer, the 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 that is an exhibit to the Exchange Offer Registration Statement, and any related documents; (ii) keep the Collateral AgreementsExchange 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; (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 Company and the Guarantor 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 will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes. Each Exchange Security shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes surrendered in exchange therefor from time to time during such period.
(f) The Company and the Guarantor shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled "Plan of Distribution," containing a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Securities received by such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"). Such "Plan of Distribution" section shall also allow the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including (without limitation) all Participating Brokers-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Securities. The Company and the Guarantor shall use their respective reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirement of the Securities Act for such period of time as such Persons must comply with such requirements in order to resell the Exchange Securities (the "Applicable Period").
Appears in 1 contract
Samples: Registration Rights Agreement (Orbital Sciences Corp /De/)
Exchange Offer. (a) Parent and the Company The Issuers shall (and shall cause each other Guarantor to) (iA) prepare and and, on or prior to 180 days after the date of original issuance of the Notes (the "ISSUE DATE"), file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form Statement under the Securities Act with respect to an offer (by the “Exchange Offer”) Company to the Holders holders of the Notes to issue and deliver to such Holdersholders, in exchange for the Notes, a like principal amount of Exchange NotesNotes (the "EXCHANGE OFFER"), (iiB) use their commercially reasonable best efforts to cause the Exchange Registration Statement relating to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, to be declared effective by the SEC under the Securities Act on or prior to 181 days after the Issue Date and (ivC) commence the Exchange Offer and use their commercially reasonable best efforts to issue issue, on or prior to 30 210 days after the date on which Issue Date, the Exchange Registration Statement is declared effective, Notes. The offer and sale of the Exchange Notes in exchange for all Notes tendered prior thereto in pursuant to the Exchange OfferOffer shall be registered pursuant to the Securities Act on the appropriate form (the "EXCHANGE REGISTRATION STATEMENT") and duly registered or qualified under all applicable state securities or Blue Sky laws and will comply with all applicable tender offer rules and regulations under the Exchange Act and state securities or Blue Sky laws. The Exchange Offer shall not be subject to any conditionscondition, other than that (i) the Exchange Offer does not violate any applicable law or applicable rule, regulation or interpretation of the staff of the SEC. Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuers shall have no further registration obligations other than with respect to (i) Private Exchange Notes, (ii) no action, suit Exchange Notes held by Participating Broker-Dealers and (iii) Notes or proceeding Exchange Notes as to which Section 3(a)(iii) hereof applies. No securities shall have been instituted or threatened be included in any court or by any governmental agency the Exchange Registration Statement other than the Exchange Notes.
(b) The Issuers may require each holder of Notes as a condition to its participation in the Exchange Offer to represent to the Issuers and their counsel in writing (which might materially impair may be contained in the ability applicable letter of transmittal) that at the time of the consummation of the Exchange Offer (i) any Exchange Notes received by such holder will be acquired in the ordinary course of its business, (ii) such holder will have no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes and (iii) such holder is not an Affiliate of an Issuer, or if it is an Affiliate of an Issuer, it will comply with the registration and prospectus delivery requirements of the Securities Act, to the extent applicable, (iv) if such Holder is a broker-dealer, receive Exchange Notes for its own account in exchange for the Notes that were acquired as a result of market-making 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 Notes, (v) such Holder will be able to trade the Exchange Notes acquired in the Exchange Offer without restriction under the Securities Act, and (vi) such Holder has full power and authority to transfer the Notes in exchange for the Exchange Notes and that the Company will acquire good and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and not subject to proceed with any adverse claims. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Notes acquired by it and no material adverse development shall have occurred having, or that are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, or any existing actionother holder of Notes is not entitled to participate in the Exchange Offer, suit the Company, upon the request of such Initial Purchaser or proceeding any such holder if a Shelf Registration Statement with respect to Notes held by such person is not then in effect shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to such Initial Purchaser and any such holder, in exchange (the "PRIVATE EXCHANGE") for such Notes held by such Initial Purchaser and any such holder, a like principal amount of debt securities of the Company, guaranteed by each of the Guarantors on a senior subordinated basis, that are identical in all material respects to the Exchange Notes (the "PRIVATE EXCHANGE NOTES") (and that are issued pursuant to the same indenture as the Exchange Notes), except that the Private Exchange Notes may be subject to restrictions on transfer and bear a legend to such effect. The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes. The Issuers and the Initial Purchasers acknowledge that the staff of the SEC has taken the position that any broker-dealer that owns Exchange Notes that were received by such broker-dealer for its own account in the Exchange Offer (a "PARTICIPATING BROKER-DEALER") may be deemed to be an "underwriter" within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Issuers and the Initial Purchasers also acknowledge that it is the SEC staff's position that if the Prospectus contained in the Exchange Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Bro- ker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer, the Issuers agree (x) to use their best efforts to keep the Exchange Registration Statement continuously effective for a period of up to 180 days or such earlier date as each Participating Broker-Dealer shall have notified the Company in writing that such Participating Broker-Dealer has resold all Exchange Notes acquired in the Exchange Offer (the "Applicable Period"), and (y) to comply with the provisions of Section 5 of this Agreement, as they relate to the Exchange Offer and the Exchange Registration Statement. Interest on the Exchange Notes and the Private Exchange Notes will accrue from (A) the later of (i) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor and (ii) if the 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 such exchange and as to which interest will be paid, the date on such interest payment date or (B), if no interest has been paid on the Notes, from the Issue Date. In connection with each Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange a copy of the Prospectus forming part of the Exchange Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use their best efforts to keep the Exchange Offer open for not less than 20 business days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last business day on which the Exchange Offer shall remain open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the applicable Exchange Offer and the applicable Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the applicable Exchange Offer and the applicable Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange and cause the Trustee to authenticate and deliver promptly to each Holder that validly tendered Notes and has not withdrawn such tender, Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the securities of such Holder so accepted for exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and that, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in such indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 210 days of the Issue Date, (iii) all governmental approvals shall have been obtained, which approvals any holder of any Private Exchange Notes so requests in writing to the Company reasonably deems necessary for Issuers within 60 days after the consummation of the Exchange Offer.
, or (biv) The in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes shall on the date of the exchange that may be issued under, sold without restriction under state and entitled federal securities laws (other than due solely to the benefits ofstatus of such Holder as an affiliate of the Issuers within the meaning of the Securities Act), then in the case of each of clauses (i) to and including (iv) of this paragraph, the Indenture or a trust indenture that is identical Issuers shall promptly deliver to the Indenture Holders and the Trustee written notice thereof (other than such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualifications thereof under the TIA"SHELF NOTICE") and (ii) the Collateral Agreementsshall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (General Automation Inc/Il)
Exchange Offer. (a) Parent and Unless the Company Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuer shall (and shall cause each other Guarantor to) (i) prepare and use its commercially reasonable efforts to file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form under the Securities Act with respect to an a registered offer (the “Exchange Offer”) to exchange any and all of the Holders Registrable Securities for a like aggregate principal amount of Notes debt securities of the Issuer (the “Exchange Notes”), guaranteed, to issue and deliver the extent applicable, on a senior unsecured basis by the Guarantors (the “New Guarantees” and, together with the Exchange Notes, the “Exchange Securities”) that are identical in all material respects to such Holders, in exchange for the Notes, a like principal amount of except that (i) the Exchange NotesNotes shall contain no restrictive legend thereon, (ii) interest thereon shall accrue (A) from the later of (a) the last date on which interest was paid on such Note or (b) if the Note is surrendered for exchange on a date in a period that includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B) if no such interest has been paid, from the Issue Date and (iii) the Exchange Securities shall be entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuer shall use their its commercially reasonable efforts to (x) prepare and file with the SEC the Exchange Offer Registration Statement with respect to the Exchange Offer; (y) keep the Exchange Offer open for at least 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) cause the Exchange Offer Registration Statement to become be declared effective under the Securities Act on or prior to July 25, 2014 (or if such day is not a Business Day, the next succeeding Business Day). Each Holder (including, without limitation, each Participating Broker-Dealer) that participates in the Exchange Offer, as promptly as practicable after a condition to participation in the filing thereofExchange Offer, but will be required to represent to the Issuer in no event later than writing (which may be contained in the Effectiveness Dateapplicable letter of transmittal) that: (i) any Exchange Securities acquired in exchange for Registrable Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Securities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Securities from such Holder has an arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the Securities Act; (iii) use neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Issuer or, if it is an affiliate of the Issuer, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their commercially reasonable efforts Securities included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to keep the actual knowledge of such Holder, any other Person receiving Exchange Securities from such Holder is engaging or intends to engage in a distribution of the Exchange Registration Statement effective until Securities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder). Upon consummation of the Exchange Offer in accordance with its termsthis Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Notes (and the related Guarantees), any Exchange Securities as to which Section 2(c)(iv) is applicable and Exchange Securities held by the Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (ivother than Private Exchange Notes (and the related Guarantees) commence and Exchange Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof.
(b) The Issuer shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Securities in compliance with the Securities Act. The Issuer shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Holders (including Participating Broker-Dealers) subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Securities; provided, however, that in no event shall the Issuer be required to keep the Exchange Offer Registration Statement effective and available for more than 180 days after consummation of the Exchange Offer, or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, immediately prior to consummation of the Exchange Offer, the Initial Holders hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuer, upon the written request of the Initial Holders, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Holders, in exchange (the “Private Exchange”) for such Notes held by any such Initial Holder, a like principal amount of notes (including the guarantees with respect thereto, the “Private Exchange Notes”) of the Issuer, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuer shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 20 Business Days from the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all laws, rules and regulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and use their commercially reasonable efforts any Private Exchange, the Issuer shall:
(1) accept for exchange all Registrable Securities validly tendered and not validly withdrawn pursuant to issue on or prior to 30 days after the date on which the Exchange Registration Statement is declared effectiveOffer and any Private Exchange;
(2) deliver to the Trustee for cancellation all Registrable Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in exchange principal amount to the Notes of such Holder so accepted for all Notes tendered prior thereto exchange; provided that, in the Exchange Offercase of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, ; (ii) no action, suit 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 Issuer to proceed with the Exchange OfferOffer or the Private Exchange, and no material adverse development shall have occurred in any existing action, suit action or proceeding with respect to the Company Issuer; and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably Issuer deems necessary for the consummation of the Exchange Offer.
(b) Offer or Private Exchange. The Exchange Securities and the Private Exchange Notes (and related guarantees) shall be issued under, and entitled to the benefits of, under (i) the Indenture or a trust (ii) an indenture that is identical in all material respects to the Indenture (other than and which, in either case, has been qualified under the TIA or is exempt from such changes 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 Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as are necessary to comply with any requirements one class and that none of the SEC Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuer is not permitted to effect or maintain the qualifications thereof under the TIA) and Exchange Offer, (ii) the Collateral AgreementsExchange Offer Registration Statement is not declared effective on or prior to July 25, 2014, (iii) any holder of Private Exchange Notes so requests in writing to the Issuer at any time within 30 days after the consummation of the Exchange Offer, or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Securities on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Issuer within the meaning of the Securities Act) and so notifies the Issuer in writing within 30 days after such Holder first becomes aware of such restrictions, then, in the case of each of clauses (i) through (iv) of this sentence, the Issuer shall promptly deliver to the Trustee with a copy to the registrar (to deliver to the Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Laureate Education, Inc.)
Exchange Offer. (a) Parent and Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each other Subsidiary Guarantor to) (i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use their all commercially reasonable efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use their all commercially reasonable efforts to keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use their all commercially reasonable efforts to issue on or prior to 30 days after the date on which the Exchange Registration Statement is declared effective, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, (ii) no action, suit 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, and no material adverse development shall have occurred in any existing action, suit or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, (i) 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 qualifications thereof under the TIA) and (ii) the Collateral Agreements.
(c) Interest on the Exchange Notes and Private Exchange Notes will accrue from the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes. Each Exchange Note and Private Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder as a condition to participation in the Exchange Offer to represent (i) that any Exchange Notes received by it will be acquired in the ordinary course of its business, (ii) that at the time of the commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that if such Holder is an “affiliate” of the either of the Company within the meaning of Rule 405 of the Securities Act, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Subsidiary Guarantor to) include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchaser which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the judgment of the Initial Purchaser, represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its commercially reasonable efforts to keep the Exchange 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 (the “Applicable Period”).
(f) If, upon consummation of the Exchange Offer, the Initial Purchaser holds any Notes acquired by it and having the status of an unsold allotment in the initial distribution, the Company (upon the written request from the Initial Purchaser) shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchaser, in exchange (the “Private Exchange”) for the Notes held by the Initial Purchaser, a like principal amount of Senior Secured Notes that are identical to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (the “Private Exchange Notes”) (and which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
(g) In connection with the Exchange Offer, the Company shall (and shall cause each Subsidiary Guarantor to):
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange 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 depository for the Exchange Offer with an address in the Borough of Manhattan, the City of New York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all applicable laws.
(h) As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Company shall (and shall cause each Subsidiary Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered pursuant to the Exchange Offer or the Private Exchange, as the case may be, and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange.
(i) The Exchange Notes and the Private Exchange Notes may be issued under (i) the Indenture or (ii) an indenture 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), which in either event will provide that the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture, that the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in all the security granted by the Company pursuant to the Collateral Agreements and in any Subsidiary Guarantee (as such terms are defined in the Indenture) on an equal and ratable basis.
(j) If (i) applicable interpretations of the staff of the SEC would not permit the consummation of the Exchange Offer prior to the Effectiveness Date; (ii) not later than 60 days after the consummation of the Private Exchange, any Holder of Private Exchange Notes so requests; (iii) the Exchange Offer is not consummated within 300 days of the Closing Date for any reason; or (iv) in the case of (A) any Holder not permitted by applicable law or SEC policy to participate in the Exchange Offer, (B) any Holder participating in the Exchange Offer that receives Exchange Notes that may not be sold without restriction under federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) or (C) any broker-dealer that holds Notes acquired directly from the Company or any of its affiliates and, in each such case contemplated by this clause (iv), such Holder notifies the Company within 20 business days of consummation of the Exchange Offer, then the Company shall promptly (and in any event within five Business Days) deliver to the Holders (or in the case of an occurrence of any event described in clause (iv) of this Section 2(j), to any such Holder) and the Trustee notice thereof (the “Shelf Notice”) and shall as promptly as possible thereafter (but in no event later than 30 days after such filing obligation arises (the “Shelf Filing Date”) file an Initial Shelf Registration pursuant to Section 3.
Appears in 1 contract
Samples: Registration Rights Agreement (Satelites Mexicanos Sa De Cv)
Exchange Offer. If on the 366th day following the Issue Date of any Series of Notes, such Series of Notes is not Freely Tradable without a restrictive legend as a result of (i) Intelsat, Ltd. failing to timely file reports pursuant to the Exchange Act (as required by Rule 144(c)(1) and (2) of the Securities Act), (ii) an affiliate of the Company of that Series of Notes enters the chain of ownership of that Series of Notes, or (iii) a change in law, regulation or interpretation by the SEC or DTC, the result of which would prohibit the removal of the restrictive legend on or prior to the 365th day following the Issue Date for such Series of Notes, then with respect to such Notes:
(a) Parent and Unless the Company Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the applicable Issuer shall (and shall cause each other Guarantor to) (i) prepare and use its commercially reasonable efforts to file with the SEC promptly after (within such time as to comply with the date hereof, but in no event later than requirements of the Filing Date, last sentence of this paragraph) a registration statement Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form under the Securities Act with respect to an a registered offer (the “Exchange Offer”) to exchange any and all of the Holders of Registrable Notes to issue and deliver to such Holders, in exchange for the Notes, a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), that are identical in all material respects to such Series of Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon, (ii) subject to compliance herewith, the Exchange Notes shall not be subject to any increase in annual interest rate as set forth in Section 4(a) hereof and (iii) interest thereon shall accrue from the last date on which interest was paid on such Series of Notes or, if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the applicable Indenture or a trust indenture which is identical in all material respects to the applicable Indenture (other than such changes to the Indentures or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The applicable Issuer shall (x) use their its commercially reasonable efforts to cause the Exchange Offer Registration Statement to become be declared effective as promptly as practicable under the Securities Act; (y) keep the Exchange Offer open for at least 20 Business Days (or longer if required by applicable law) after the filing thereof, but in no event later than date that notice of the Effectiveness Date, Exchange Offer is mailed to Holders; and (iiiz) use their its commercially reasonable efforts to keep consummate the Exchange Offer on or prior to the 365th day following the one year anniversary of the Issue Date (or if such 365th day is not a Business Day, the next succeeding Business Day); provided, however, that no Issuer shall be required to consummate such Exchange Offer if all the Notes in any Series of Notes are Freely Tradable. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the applicable Issuer in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in the distribution of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of any Issuer or, if it is an affiliate of any Issuer, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement effective until in accordance with Section 5 hereof in order to have its Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; (v) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is prohibited by any law or policy of the SEC from participating in the Exchange Offer; and (vi) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder). Upon consummation of the Exchange Offer in accordance with its termsthis Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers; provided, however, that the applicable Issuer shall have no further obligation to register Registrable Notes, or file any Registration Statement in respect thereof, (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to this Agreement. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement.
(b) The applicable Issuer shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The applicable Issuer shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (ivthe “Applicable Period”). If, prior to consummation of an Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Company, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) commence for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the applicable Issuer shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use its commercially reasonable efforts to keep the Exchange Offer open for not less than 20 Business Days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and use their commercially reasonable efforts the Private Exchange, if any, the applicable Issuer shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to issue on or prior to 30 days after the date on which the Exchange Registration Statement is declared effectiveOffer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, a principal amount of Exchange Notes or Private Exchange Notes, as the case may be, equal in exchange principal amount to the Notes of such Holder so accepted for all Notes tendered prior thereto exchange; provided that, in the Exchange Offercase of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the applicable Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate any applicable law or any applicable rule, regulation or interpretation of the staff of the SEC, ; (ii) no action, suit 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 applicable Issuer to proceed with the Exchange OfferOffer or the Private Exchange, and no material adverse development shall have occurred in any existing action, suit action or proceeding with respect to the Company Company; and (iii) all governmental approvals shall have been obtained, which approvals the Company reasonably such Issuer deems necessary for the consummation of the Exchange Offer.
(b) Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under, and entitled under (i) the Indentures or (ii) indentures identical in all material respects to the benefits ofIndentures and which, in either case, have been qualified under the TIA or are exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indentures. The Indentures or such indentures shall provide that the Exchange Notes, the Private Exchange Notes and the Notes outstanding in any applicable Series of 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 outstanding in the applicable Series of Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) the Indenture because of any change in law or a trust indenture that is identical to the Indenture (other than such changes as are necessary to comply with any requirements in currently prevailing interpretations of the SEC staff of the SEC, the Company determines upon advice of its outside counsel that it is not permitted to effect or maintain the qualifications thereof under the TIA) and Exchange Offer, (ii) the Collateral AgreementsExchange Offer is not consummated within 365 days of the first anniversary of the Issue Date, (iii) the Initial Purchasers or any other holder of Private Exchange Notes so requests in writing to the applicable Issuer at any time after the consummation of the Exchange Offer or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under U.S. state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the applicable Issuer within the meaning of the Securities Act and other than any Participating Broker-Dealer by virtue of any prospectus delivery requirement) and so notifies the Company prior to the 20th Business Day following consummation of the Exchange Offer of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Company shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and such Issuer shall file a Shelf Registration pursuant to Section 3 hereof; provided, however, that no Holder (other than an Initial Purchaser) shall be entitled to have the Notes held by it covered by such Shelf Registration unless such Holder agrees in writing to be bound by all of the provisions of this Agreement applicable to such Holder.
Appears in 1 contract
