Marketing Period. The Purchaser and any investment banks engaged by the Purchaser in connection with a Syndicated Private Placement Offering shall have been afforded a period of at least twenty-five (25) Business Days commencing upon receipt of an Offering Memorandum to place the Notes with qualified investors (the “Marketing Period”); provided that the Marketing Period shall not commence or be deemed to have commenced if after the date of this Agreement and prior to the completion such twenty-five (25) Business Day period (A) the Company has publicly announced its intention to, or determines that it must, restate any historical financial statements or other financial information to be included in the Offering Memorandum or any such restatement is under active consideration, in which case, the Marketing Period shall not commence or be deemed to commence unless and until such restatement has been completed and the applicable historical financial statements or other financial information has been amended and updated or the Company has publicly announced or informed the Purchaser that it has concluded that no restatement shall be required, (B) the Company’s independent auditors shall have withdrawn their audit opinion with respect to any financial statements to be included in the Offering Memorandum for which they have provided an opinion, in which case the Marketing Period shall not commence or be deemed to commence unless and until a new audit opinion is issued with respect to such financial statements for the applicable periods by the independent accountants or another independent public accounting firm reasonably acceptable to the Purchaser, or (C) the Offering Memorandum would not be Compliant at any time during the twenty-five (25) Business Day period, in which case the Marketing Period shall not commence or be deemed to commence unless and until the Offering Memorandum is updated or supplemented so that it is Compliant (it being understood that if any Offering Memorandum provided at the commencement of the Marketing Period ceases to be Compliant during such twenty-five (25) Business Day period, then the Marketing Period shall be deemed not to have commenced).
Appears in 1 contract
Marketing Period. The Purchaser and any investment banks engaged by the Purchaser in connection with a Syndicated Private Placement Offering Revolving Joint Lead Arrangers shall have been afforded a period of at least twenty-five (25) Business Days commencing upon receipt of an Offering Memorandum to place the Notes with qualified investors (the “Marketing Period”)) of at least fifteen (15) consecutive Business Days following receipt of the Required Bank Information to seek to syndicate the facility provided under this Agreement; provided provided, that the Marketing Period shall not commence or be deemed required to have commenced if after the date of this Agreement and prior be consecutive to the completion extent it would include May 28, 2018, July 2-6, 2018 or September 3, 2018 (such twenty-five (25) Business Day period (A) the Company has publicly announced its intention to, or determines that it must, restate any historical financial statements or other financial information days to be included in excluded for the Offering Memorandum or any such restatement is under active considerationpurpose of calculating, in which casebut shall not reset, the Marketing Period shall not commence or be deemed to commence unless and until such restatement has been completed and Period); provided, further that if the applicable historical financial statements or other financial information has been amended and updated or the Company has publicly announced or informed the Purchaser Revolving Borrower in good faith reasonably believes that it has concluded that no restatement shall be requireddelivered the Required Bank Information, (B) it may deliver to the Company’s independent auditors shall have withdrawn their audit opinion with respect to Revolving Joint Lead Arrangers a written notice stating the date the Revolving Borrower believes it completed any financial statements to be included in the Offering Memorandum for which they have provided an opinionsuch delivery, in which case the Marketing Period Revolving Borrower shall not commence or be deemed to commence have delivered the Required Bank Information as of the date of delivery of such notice unless the Revolving Joint Lead Arrangers in good faith reasonably believe that the Revolving Borrower has not completed delivery of the Required Bank Information, and until a new audit opinion is issued with respect to within three (3) Business Days after the receipt of such financial statements for the applicable periods notice by the independent accountants or another independent public accounting firm reasonably acceptable Revolving Borrower, any of the Revolving Joint Lead Arrangers delivers a written notice to the PurchaserRevolving Borrower stating with specificity what information the Revolving Borrower has not delivered; provided, or (C) further that after the Offering Memorandum would not be Compliant at any time during the twenty-five (25) Business Day period, in which case the Marketing Period shall not commence or be deemed to commence unless and until the Offering Memorandum is updated or supplemented so that it is Compliant (it being understood that if any Offering Memorandum provided at the date of commencement of the Marketing Period ceases Period, the subsequent delivery of any financial statements required pursuant to be Compliant during such twenty-five (25Section 4.1(h) Business Day period, then shall not result in the “restart” of the Marketing Period shall be deemed not to have commenced)Period.
Appears in 1 contract
Marketing Period. The Purchaser and any investment banks engaged by Commencing on the Purchaser in connection with a Syndicated Private Placement Offering shall have been afforded a period later to occur of at least twenty-five (25i) Business Days commencing upon Landlord's timely receipt of an Offering Memorandum to place the Notes with qualified investors Disposition Facility ID Notice, and (ii) the Effective Date (as defined below) and continuing until September 30, 2004 (the “"MARKETING PERIOD"), Landlord and Tenant shall use their respective reasonable commercial efforts to market and sell each of the potential Disposition Facilities in accordance with this Section 27. In the event that during the Marketing Period”); provided that , through the efforts of Tenant or otherwise, Landlord is presented with an offer to sell a Disposition Facility for an amount equal to or in excess of the applicable Minimum Purchase Price and otherwise in accordance with this Section 27 prior to expiration of the Marketing Period Period, in the form of a fully executed non-binding letter of intent, term sheet or similar instrument for the purchase and sale of the applicable Disposition Facility in form acceptable to Landlord in its reasonable discretion (a "BONA FIDE OFFER"), Landlord shall not commence or be deemed take commercially reasonable efforts to have commenced if after the date of this Agreement enter into a purchase and sale agreement for such sale, in form and substance reasonably acceptable to Landlord and Tenant, prior to the completion expiration of the Marketing Period, and consummate such twenty-five sale in accordance with such purchase and sale agreement prior to the date that is sixty (2560) Business Day period (A) days after the Company has publicly announced its intention to, or determines that it must, restate any historical financial statements or other financial information to be included in expiration of the Offering Memorandum or any such restatement is under active considerationMarketing Period. However, in which case, no event shall Landlord be obligated to market any Disposition Facility or otherwise take any action to sell any Disposition Facility after the expiration of the Marketing Period shall not commence or be deemed to commence unless and until such restatement has been completed and the applicable historical financial statements or other financial information has been amended and updated or the Company has publicly announced or informed the Purchaser that it has concluded that no restatement shall be requiredPeriod, (B) the Company’s independent auditors shall have withdrawn their audit opinion with respect to any financial statements to be included in the Offering Memorandum for which they have provided an opinion, in which case the Marketing Period shall not commence or be deemed to commence unless and until a new audit opinion is issued with respect to such financial statements except for the applicable periods by consummation of any sale within a reasonable period of time after Marketing Period, not to exceed, sixty (60) days that is subject as of the independent accountants or another independent public accounting firm reasonably acceptable to the Purchaser, or (C) the Offering Memorandum would not be Compliant at any time during the twenty-five (25) Business Day period, in which case the Marketing Period shall not commence or be deemed to commence unless and until the Offering Memorandum is updated or supplemented so that it is Compliant (it being understood that if any Offering Memorandum provided at the commencement expiration of the Marketing Period ceases to be Compliant during such twenty-a fully executed purchase and sale agreement with a deposit not less than five percent (255%) Business Day periodof the applicable actual purchase price, then which deposit shall become nonrefundable no later than thirty (30) days after the execution of the purchase and sale agreement. Such purchase and sale agreement shall, upon expiration of the Marketing Period shall Period, not be deemed not subject to have commenced)any unexpired study or feasibility period or due diligence-type termination right, nor any financing or other open-ended closing condition that expires beyond thirty (30) days after the execution of the purchase and sale agreement, but may be subject to reasonable and customary closing conditions such as insurable title, no material casualty, licensing and no material condemnation in form and substance reasonably acceptable to Landlord.
Appears in 1 contract
Samples: Brookdale Senior Living Inc.
Marketing Period. The Purchaser and any investment banks engaged by the Purchaser in connection with a Syndicated Private Placement Offering “Marketing Period” shall have been afforded mean a period of at least twenty-five fifteen (2515) Business Days consecutive “business days” (such term shall be construed to have the same meaning as in the Debt Commitment Letter) after the date of this Agreement commencing upon receipt on the first day on which Table of an Offering Memorandum Contents Parent shall have received the Required Information the Company is required to place the Notes with qualified investors (the “Marketing Period”)provide pursuant to Section 6.11; provided that (a) no day during the period from November 27 - 28, 2013 shall be considered a business day for purposes of determining the Marketing Period but in any event no day during such period shall restart the consecutive business day time period, and (b) if the Marketing Period were to commence but would not be completed in accordance with its terms on or prior to December 18, 2013, then the Marketing Period shall not commence or prior to January 6, 2014. Notwithstanding the foregoing, the “Marketing Period” shall not commence and shall be deemed not to have commenced if after (A) prior to the date commencement of this Agreement and the Offer or (B) if, on or prior to the completion of such twenty-five fifteen (2515) Business Day period (A) consecutive business day period, the Company has shall have publicly announced its any intention to, or determines that it must, to restate any historical financial statements or other material financial information to be included in the Offering Memorandum Required Information or that any such restatement is under active consideration, in which case, case the Marketing Period shall not commence or be deemed not to commence unless and until such restatement has been completed and the applicable historical financial statements or other financial information Required Information has been amended and updated or the Company has publicly announced or informed the Purchaser that it has concluded that no restatement shall be required, and Parent shall have the Required Information on the first day, throughout and on the last day of during such new fifteen (B15) consecutive business day period. Material Adverse Effect. An event, occurrence, violation, inaccuracy, circumstance or other matter will be deemed to have a “Material Adverse Effect” on the Acquired Corporations if such event, violation, inaccuracy, circumstance or other matter (whether or not any such matter, considered together with all other matters, would constitute a breach to the representations, warranties, covenants or agreements of the Company set forth in the Agreement) had or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on (a) the business, assets, financial condition or results of operations of the Acquired Corporations taken as a whole or (b) the ability of the Company to consummate the Transactions in a timely manner; provided, however, that none of the following shall be deemed in and of themselves, either alone or in combination, to constitute, and none of the following shall be taken into account in determining whether there is, or would reasonably likely to be, a Material Adverse Effect on the Acquired Corporations for purposes of clause (a) above: (i) any change in the market price or trading volume of the Company’s independent auditors shall have withdrawn their audit opinion with respect stock; (ii) any event, violation, inaccuracy, circumstance or other matter directly resulting from the announcement or pendency of the Transactions (other than for purposes of any representation or warranty contained in Section 3.22 but subject to disclosures in Part 3.22 of the Company Disclosure Schedule), including to the extent so resulting in, any reduction in bxxxxxxx or revenue, any disruption in (or loss of) supplier, distributor, partner, reseller or similar relationships, loss of any customer or any loss of employees; (iii) any event, circumstance, change or effect in the industries in which the Acquired Corporations operate or in the economy generally or other general business, financial or market conditions, except to the extent that the Acquired Corporations are adversely affected disproportionately relative to the other participants in such industries or the economy generally, as applicable; (iv) any event, circumstance, change or effect arising directly or indirectly from or otherwise relating to fluctuations in the value of any currency; (v) any event, circumstance, change or effect arising directly or indirectly from or otherwise relating to any financial statements act of terrorism, war, national or international calamity or any other similar event, except to be included the extent that such event, circumstance, change or effect disproportionately affects the Acquired Corporations relative to other participants in the Offering Memorandum for which they have provided an opinion, industries in which case the Marketing Period shall not commence Acquired Corporations operate or be deemed to commence unless and until a new audit opinion is issued with respect to such financial statements for the applicable periods by the independent accountants or another independent public accounting firm reasonably acceptable to the Purchasereconomy generally, or as applicable; (Cvi) the Offering Memorandum would not be Compliant at any time during the twenty-five (25) Business Day period, in which case the Marketing Period shall not commence or be deemed to commence unless and until the Offering Memorandum is updated or supplemented so that it is Compliant (it being understood that if any Offering Memorandum provided at the commencement failure of the Marketing Period ceases Acquired Corporations to be Compliant during such twenty-five (25) Business Day period, then meet internal or analysts’ expectations or projections or the Marketing Period shall be deemed not to have commenced).results of operations of the Acquired Corporations; Table of Contents
Appears in 1 contract
Samples: Agreement and Plan of Merger (Greenway Medical Technologies Inc)
Marketing Period. The Purchaser and any investment banks engaged by the Purchaser in connection with a Syndicated Private Placement Offering shall have been afforded a period of at least twenty-five (25) Business Days commencing upon receipt of an Offering Memorandum to place the Notes with qualified investors (the “Marketing Period”); provided that ” shall mean the Marketing Period shall not commence or be deemed to have commenced if first period of 20 consecutive business days after the date of this Agreement beginning on the later of the first day on which (a) Parent shall have the Required Information the Company is required to provide pursuant to Section 5.12, and such Required Information is Compliant and (b) all conditions set forth in Section 6.1 and Section 6.2 (other than those conditions that by their terms are to be satisfied at the Closing, which need only be satisfied at the Closing, as the case may be) have been satisfied and nothing has occurred and no condition exists that would cause any of such conditions not to be satisfied assuming Closing, as the case may be, were to be scheduled for any time during such 20 consecutive business day period; provided that (x) July 4, 2013 and July 5, 2013 shall not be considered business days and (y) if such 20 consecutive business day period has not ended prior to August 17, 2013, then it will not commence until after September 2, 2013. Notwithstanding the foregoing, the “Marketing Period” shall not commence and shall be deemed not to have commenced (A) prior to the mailing of the Proxy Statement or (B) if, on or prior to the completion of such twenty-five (25) Business Day period (A) 20 business day period, the Company has shall have publicly announced its any intention to, or determines that it must, to restate any historical financial statements or other material financial information to be included in the Offering Memorandum Required Information or that any such restatement is under active consideration, in which case, case the Marketing Period shall not commence or be deemed not to commence unless and until such restatement has been completed and the applicable historical financial statements or other financial information Required Information has been amended and updated or the Company has publicly announced or informed the Purchaser that it has concluded that no restatement shall be required, and the requirements in clauses (Ba) and (b) above would be satisfied on the first day, throughout and on the last day of such new 20 business day period or (y) the Company’s independent auditors shall have withdrawn their audit opinion with respect to any financial statements to be included in the Offering Memorandum for which they have provided an opinion, in which case the Marketing Period shall not commence or be deemed to commence unless and until a new audit opinion is issued with respect to such financial statements for the applicable periods by the independent accountants or another independent public accounting firm reasonably acceptable to the Purchaser, or (C) the Offering Memorandum Required Information would not be Compliant at any time during the twenty-five (25) Business Day such 20 business day period, in which case a new 20 business day period shall commence upon Parent and its financing sources receiving updated Required Information that would be Compliant, and the Marketing Period shall not commence or requirements in clauses (a) and (b) above would be deemed to commence unless satisfied on the first day, throughout and until on the Offering Memorandum is updated or supplemented so that it is Compliant last day of such new 20 business day period (for the avoidance of doubt, it being understood that if at any Offering Memorandum time during the Marketing Period the Required Information provided at the commencement initiation of the Marketing Period ceases to be Compliant during such twenty-five (25) Business Day periodCompliant, then the Marketing Period shall be deemed not to have commencedoccurred). In addition, if the Marketing Period would end after the last day prior to the filing of the Company’s annual report on Form 10-K for the fiscal year ended February 2, 2013 on which the auditors would be willing to deliver comfort letters with negative assurance through the pricing date of such offering pursuant to SAS 72 (i.e., the 135th day after the end of the third fiscal quarter) and before the day that the Company files such Form 10-K, then the Marketing Period will not begin prior to the filing of such Form 10-K; provided, that such Form 10-K, for the avoidance of doubt, may omit such information as is permitted to be incorporated by reference to the Company’s proxy statement for its next annual meeting of shareholders pursuant to General Instruction G of Form 10-K. Material Adverse Effect. An event, occurrence, violation, inaccuracy, circumstance or other matter will be deemed to have a “Material Adverse Effect” on the Acquired Corporations if such event, violation, inaccuracy, circumstance or other matter (whether or not any such matter, considered together with all other matters, would constitute a breach to the representations, warranties, covenants or agreements of the Company set forth in the Agreement) had or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on (a) the business, financial condition or results of operations of the Acquired Corporations taken as a whole or (b) the ability of the Company to consummate the Transactions; provided, however, that none of the following shall be deemed in and of themselves, either alone or in combination, to constitute, and none of the following shall be taken into account in determining whether there is, or would reasonably likely to be, a Material Adverse Effect on the Acquired Corporations: (i) any change in the market price or trading volume of the Company’s stock; (ii) any event, violation, inaccuracy, circumstance or other matter resulting from the announcement or pendency of the Transactions (other than for purposes of any representation or warranty contained in Section 2.22 but subject to disclosures in Part 2.22 of the Company Disclosure Schedule), including to the extent so resulting in, any reduction in revenue, any disruption in (or loss of) supplier, distributor, partner or similar relationships or any loss of employees or any litigation arising from allegations of breach of fiduciary duty or violation of Legal Requirements relating to this Agreement or the transactions contemplated by this Agreement; (iii) any event, circumstance, change or effect in the industries in which the Acquired Corporations operate or in the economy generally or other general business, financial or market conditions, except to the extent that the Acquired Corporations are adversely affected disproportionately relative to the other participants in such industries or the economy generally, as applicable; (iv) any event, circumstance, change or effect arising directly or indirectly from or otherwise relating to fluctuations in the value of any currency; (v) any event, circumstance, change or effect arising directly or indirectly from or otherwise relating to any act of terrorism, war, national or international calamity or any other similar event, except to the extent that such event, circumstance, change or effect disproportionately affects the Acquired Corporations relative to other participants in the industries in which the Acquired Corporations operate or the economy generally, as applicable; (vi) the failure of the Acquired Corporations to meet internal or analysts’ expectations or projections or the results of operations of the Acquired Corporations; (vii) any adverse effect arising directly from or otherwise directly relating to any action taken by the Acquired Corporations at the written direction of Parent or any action specifically required to be taken by the Acquired Corporations, or the failure of the Acquired Corporations to take any action that the Acquired Corporations are specifically prohibited by the terms of this Agreement from taking to the extent Parent fails to give its consent thereto after a written request therefor pursuant to Section 4.2; (viii) any change resulting or arising from the identity of, or any facts or circumstances relating to, Parent, Merger Sub or any of their respective Affiliates, (ix) any event, circumstance, change or effect arising directly or indirectly from or otherwise relating to any change in, or any compliance with or action taken for the purpose of complying with, any Legal Requirement or GAAP (or interpretations of any Legal Requirement or GAAP), or (x) any change or prospective change in the Company’s credit ratings; it being understood that the exceptions in clauses (i), (vi) and (x) shall not prevent or otherwise affect a determination that the underlying cause of any such decline or failure referred to therein (if not otherwise falling within any of the exceptions provided by clauses (ii) through (v) or (vii) through (ix) hereof) is a Material Adverse Effect.
Appears in 1 contract
Marketing Period. The Purchaser and any investment banks engaged by the Purchaser in connection with a Syndicated Private Placement Offering shall have been afforded a period of at least twenty-five (25) Business Days commencing upon receipt of an Offering Memorandum to place the Notes with qualified investors (the “Marketing Period” is defined in the Merger Agreement to be the first period of eighteen consecutive business days after January 9, 2014 (i) commencing on the date Parent shall have received all financial and other pertinent information regarding AMPAC and its Subsidiaries (including information to be used in the preparation of one or more information packages regarding the business, operations, financial projections and prospects of AMPAC and its Subsidiaries customary for such financing or reasonably necessary for the syndication of the Available Financing by the Financing Sources) to the extent reasonably requested by Parent to assist in preparation of customary offering or information documents or rating agency or lender presentations (it being understood that such information shall include, without limitation, the financial statements of AMPAC and its Subsidiaries as of, and for the three months ended December 31, 2013 and shall include pro forma financial information of AMPAC and its Subsidiaries as of, and for the twelve months ended, December 31, 2013) relating to the Financing (information required to be delivered pursuant to this clause being referred to as, the “Required Information”); provided, that if AMPAC shall in good faith reasonably believe it has provided the Required Information, it may deliver to Parent a written notice to that effect (stating when it believes it completed such delivery), in which case AMPAC shall be deemed to have complied with the requirement above to provide the Required Information unless Parent in good faith reasonably believes AMPAC has not completed the delivery of the Required Information and, within three (3) business days after the delivery of such notice by AMPAC, delivers a written notice to AMPAC to that effect (stating with reasonable specificity which Required Information AMPAC has not delivered) and (ii) during which nothing has occurred and no condition exists that would cause any of the Offer Conditions (other than Marketing Period Condition) or the conditions to effect the Merger to fail to be satisfied, assuming the Closing were to be scheduled for any time during such eighteen business day period (other than the HSR Act and Austrian Competition Law clearances, which must be satisfied at the Closing); provided that (x) the Marketing Period in any event shall end on any earlier date on which the Debt Financing is funded and (y) the Marketing Period shall not commence or be deemed to have commenced if after the date of this Agreement and if, prior to the completion of such twenty-five (25) Business Day eighteen business day period (A) BDO USA, LLP shall have withdrawn its audit opinion with respect to any financial information or financial statements included in the Company has Required Information, in which case the Marketing Period may not commence unless and until a new unqualified audit opinion is issued with respect to the consolidated financial statements of AMPAC for the applicable periods by BDO USA, LLP or another independent public accounting firm of recognized national standing reasonably acceptable to Parent or (B), AMPAC shall have publicly announced its any intention to, or determines determined that it must, restate any historical financial information or financial statements or other financial information to be included in the Offering Memorandum Required Information or any such restatement is under active consideration, in which case, case the Marketing Period shall may not commence or be deemed to commence unless and until such restatement has been completed and the applicable historical financial statements or other financial information Required Financial Information has been amended or AMPAC has determined and updated announced that no such restatement is required in accordance with GAAP. The Merger. The Merger Agreement provides that, as soon as practicable following the Acceptance Time and, in any event on the date of, and immediately following the Offer Closing and upon the terms and subject to the conditions set forth in the Merger Agreement, and in accordance with the DGCL, at the Effective Time: • Purchaser will be merged with and into AMPAC, with AMPAC continuing as the Surviving Corporation; • Parent, Purchaser and AMPAC acknowledge and agree that the Merger shall be effected pursuant to Section 251(h) of the DGCL; and • the Merger will have the effects specified in the DGCL. The respective obligation of each party to complete the Merger is subject to the satisfaction or waiver in writing if permissible under applicable law, at or prior to the Company has publicly announced or informed Effective Time, of each of the following conditions: • the Purchaser that it has concluded that shall have accepted for payment all of the Shares validly tendered and not withdrawn pursuant to the Offer; and • no restatement law, injunction, judgment or ruling enacted, promulgated, issued, entered, amended or enforced by any governmental authority shall be requiredin effect enjoining, (B) the Company’s independent auditors shall have withdrawn their audit opinion with respect to any financial statements to be included in the Offering Memorandum for which they have provided an opinionrestraining, in which case the Marketing Period shall not commence preventing or be deemed to commence unless and until a new audit opinion is issued with respect to such financial statements for the applicable periods by the independent accountants or another independent public accounting firm reasonably acceptable to the Purchaser, or (C) the Offering Memorandum would not be Compliant at any time during the twenty-five (25) Business Day period, in which case the Marketing Period shall not commence or be deemed to commence unless and until the Offering Memorandum is updated or supplemented so that it is Compliant (it being understood that if any Offering Memorandum provided at the commencement prohibiting consummation of the Marketing Period ceases to be Compliant during such twenty-five (25) Business Day period, then Merger or making the Marketing Period shall be deemed not to have commenced)consummation of the Merger illegal.
Appears in 1 contract
Samples: Flamingo Merger Sub Corp.
Marketing Period. The Purchaser Subject to the terms and any investment banks engaged conditions of this Agreement, the parties hereto acknowledge and agree that if the Marketing Period has not ended at the time of the satisfaction or waiver of the conditions set forth in Article VI (other than those conditions that by their nature are to be satisfied at the Closing but subject to the satisfaction or waiver of such conditions at the Closing), the Closing shall occur on the earlier to occur of (a) a date during the Marketing Period specified by the Purchaser Parents on no less than three (3) business days prior written notice to the Company and (b) the second (2nd) business day immediately following the end of the Marketing Period (as it may be extended under the terms of this Agreement), subject in connection each case to the satisfaction or waiver of all of the conditions set forth in Article VI for the Closing as of the date determined in accordance with clause (a) or (b) above, or on such other date, time or place as the Company and the Parents may agree in writing. The term “Marketing Period” shall mean the first period of thirty-five (35) consecutive calendar days after the date of this Agreement, beginning on the later of (x) the delivery of the Required Information and (y) the first business day following the date on which the conditions set forth in Section 6.1 (other than the conditions set forth in Section 6.1(d)) and Section 6.3 have been satisfied (other than those conditions that by their nature are to be satisfied at Closing), throughout and at the end of which (i) the Parents shall have (and their Lenders or other Financing sources shall have) access to the Required Information (it being understood that if at any time during the Marketing Period (A) the Required Information becomes stale, ceases to comport with the SEC requirements that would apply to a Syndicated Private Placement Offering registered public offering of debt securities or otherwise does not include the “Required Information”, as defined, (B) the Required Information does not include audited financial statements of the Company and its Subsidiaries or the Cable Business as a stand-alone entity or the Fiber Business as a stand-alone entity, as of and for the year ended December 31, 2009, (C) the independent registered public accounting firm for the Company, or for the Cable Business as a stand-alone entity, or for the Fiber Business as a stand-alone entity, shall have withdrawn its audit opinion with respect to the most recently issued audited consolidated financial statements of the Company, the Cable Business as a stand-alone entity or the Fiber Business as a stand-alone entity, as the case may be, (D) the Company shall have been afforded a period of delinquent in filing any periodic report or material current report with the SEC required under the Exchange Act, (E) the Company shall have announced any intention to restate any material financial information included in the Required Information or that any such restatement is under consideration, then the Marketing Period shall not be deemed to have occurred and shall be deemed to have commenced only when such deficiency or condition has been cured or no longer exists) and (ii) the conditions set forth in Section 6.1 (other than the conditions set forth in Section 6.1(d)) and Section 6.3 are satisfied (other than those conditions that by their nature are to be satisfied at least twenty-five (25) Business Days commencing upon receipt of an Offering Memorandum to place the Notes with qualified investors (the “Marketing Period”Closing); provided that the Marketing Period shall not commence or be deemed to have commenced end on any earlier date on which the Debt Financing is consummated; and provided further that if after the date of this Agreement and prior Company shall in good faith reasonably believe it has delivered the Required Information, it may deliver to the completion Parents a written notice to that effect (stating when it believes it completed such twenty-five (25) Business Day period (A) the Company has publicly announced its intention to, or determines that it must, restate any historical financial statements or other financial information to be included in the Offering Memorandum or any such restatement is under active consideration, in which case, the Marketing Period shall not commence or be deemed to commence unless and until such restatement has been completed and the applicable historical financial statements or other financial information has been amended and updated or the Company has publicly announced or informed the Purchaser that it has concluded that no restatement shall be required, (B) the Company’s independent auditors shall have withdrawn their audit opinion with respect to any financial statements to be included in the Offering Memorandum for which they have provided an opiniondelivery), in which case the Marketing Period shall not commence or Required Information will be deemed to commence have been delivered on the date of such notice unless and until a new audit opinion is issued with respect to the Parents in good faith reasonably believe the Company has not completed delivery of the Required Information and, within three (3) business days after the delivery of such financial statements for the applicable periods notice by the independent accountants or another independent public accounting firm reasonably acceptable Company, deliver a written notice to the Purchaser, or Company to that effect (C) stating with specificity which Required Information the Offering Memorandum would Company has not be Compliant at any time during the twenty-five (25) Business Day period, in which case the Marketing Period shall not commence or be deemed to commence unless and until the Offering Memorandum is updated or supplemented so that it is Compliant (it being understood that if any Offering Memorandum provided at the commencement of the Marketing Period ceases to be Compliant during such twenty-five (25) Business Day period, then the Marketing Period shall be deemed not to have commenceddelivered).
Appears in 1 contract
Marketing Period. The Purchaser and any investment banks engaged by the Purchaser in connection with a Syndicated Private Placement Offering shall have been afforded a period of at least twenty-five (25) 25 Business Days commencing upon receipt of an Offering Memorandum to place the Notes with qualified investors (the “Marketing Period”); provided that the Marketing Period shall not commence or be deemed to have commenced if after the date of this Agreement and prior to the completion such twenty-five (25) 25 Business Day period (A) the Company has publicly announced its intention to, or determines that it must, restate any historical financial statements or other financial information to be included in the Offering Memorandum or any such restatement is under active consideration, in which case, the Marketing Period shall not commence or be deemed to commence unless and until such restatement has been completed and the applicable historical financial statements or other financial information has been amended and updated or the Company has publicly announced or informed the Purchaser that it has concluded that no restatement shall be required, (B) the Company’s independent auditors shall have withdrawn their audit opinion with respect to any financial statements to be included in the Offering Memorandum for which they have provided an opinion, in which case the Marketing Period shall not commence or be deemed to commence unless and until a new audit opinion is issued with respect to such financial statements for the applicable periods by the independent accountants or another independent public accounting firm reasonably acceptable to the Purchaser, or (C) the Offering Memorandum would not be Compliant at any time during the twenty-five (25) 25 Business Day period, in which case the Marketing Period shall not commence or be deemed to commence unless and until the Offering Memorandum is updated or supplemented so that it is Compliant (it being understood that if any Offering Memorandum provided at the commencement of the Marketing Period ceases to be Compliant during such twenty-five (25) Business Day period, then the Marketing Period shall be deemed not to have commenced).to
Appears in 1 contract
