Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable efforts to have the Exchange Offer completed not later than 210 days after the Closing Date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law: (i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement; (iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and (v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall: (i) 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 the Guarantors; and (iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. (b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 days from the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC. (c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement. (d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SEC. (e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 9 contracts
Samples: Registration Rights Agreement (1115650 Alberta LTD), Registration Rights Agreement (Harvest Sask Energy Trust), Registration Rights Agreement (Harvest Breeze Trust No. 1)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff staff of the SEC, the Company and the Guarantors shall use their commercially reasonable efforts to cause a Shelf Registration Statement to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable efforts to have the Exchange Offer completed not later than 210 days after the Closing Date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable its best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 days from the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause on or before July 7, 1999 and
(iiiii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable efforts to keep the such Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) of the 1933 Act with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration StatementHolders. The Company and the Guarantors further agree agrees to supplement or amend the such Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities Cumulative Preference Shares copies of any such supplement or amendment promptly after its being used or filed with the SEC, as well as all legal opinions, comfort letters, officers certificates and any other information and documents required to be delivered by the Company as stipulated in Section (3) hereof.
(cb) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b)hereof. Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities Cumulative Preference Shares pursuant to the Shelf Registration Statement.
(dc) An Exchange Offer A Shelf Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; providedPROVIDED, howeverHOWEVER, that, if, if after it has been declared effective, effective the offering of Registrable Securities Cumulative Preference Shares pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Shelf Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities Cumulative Preference Shares pursuant to such Shelf Registration Statement may legally resume. In the event the Exchange Offer is not completed and the a Shelf Registration Statement covering all Cumulative Preference Shares (i) is not declared effective on or prior before July 7, 1999 or (ii) is unavailable during any 360-day period for a period of more than 60 days or two periods of more than an aggregate of 90 days, (A) the dividend rate applicable to 210 days from the Closing Date, the interest rate on the Securities will be increased Cumulative Preference Shares shall increase by 0.251% per annum (to a total of 13% per annum) from the date of the deficiency under (i) or (ii), as the case may be, until the Exchange Offer is completed or the date such Shelf Registration Statement is declared effective by or is made available for use without any restrictions or that during such time period dividends shall accrue on the SECCumulative Preference Shares at an annual rate of 13% of the Accreted Liquidation Preference per share.
(d) In any 360-day period, the Company shall be entitled to suspend the availability of a Shelf Registration Statement for no more than one period of up to 60 days or two periods of no more than an aggregate of 90 days if the Board of Directors determines that such suspension would be in the best interests of the Company.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 6 contracts
Samples: Preference Registration Rights Agreement (Polish Investments Holding Lp), Preference Registration Rights Agreement (Chase Cheryl A), Preference Registration Rights Agreement (Darland Trust)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all each series of the Registrable Securities for the applicable series of Exchange Securities and shall use its best efforts to have such Registration Statement declared effective by the SEC and remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable efforts to have the Exchange Offer completed not later than 210 days after the Closing DateSEC. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Exchange Offer Prospectus and accompanying documents to each Holder of the applicable series of Registrable Securities stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not withdrawn in accordance with the terms of the Exchange Offer will be accepted for exchangeexchange for the applicable series of Exchange Securities;
(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 Registrable Security Securities not tendered will remain outstanding and continue to accrue interestinterest at the initial rate borne by the applicable series of Registrable Securities and, but other than Registrable Securities of such series referred to in Section 2(b)(iii) below, will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a any Registrable Security Securities exchanged pursuant to the Exchange Offer will be required to surrender such Registrable SecuritySecurities, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Registrable Securities exchanged. As soon as practicable Promptly after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of and of the same series as the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable its best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall shall, subject to applicable law, inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 the date that is 360 days from after the Closing Date Date, or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable SecuritiesSecurities by the Initial Purchasers of Registrable Securities that are acquired by the Initial Purchaser from the Company, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable its best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially reasonable its best efforts to keep the Shelf Registration Statement continuously effective until the expiration first anniversary of the period referred to in Rule 144(k) with respect to the Registrable Securities Closing Date or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed consummated and the Shelf Registration Statement is not declared effective on or prior to 210 the date that is 360 days from after the Closing DateDate with respect to the applicable series of the Securities, the interest rate on the applicable series of the Securities will be increased as liquidated damages by 0.25% 0.25 per annum until the Exchange Offer is completed consummated or the Shelf Registration Statement is declared effective by the SECSEC (such increased interest, “Special Interest”).
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Silgan Holdings Inc), Registration Rights Agreement (Silgan Holdings Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company Issuers and the Guarantors shall use their commercially reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company Issuers and the Guarantors to the Holders to exchange all of the Registrable Securities Notes for Exchange Securities Notes and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company Issuers and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable efforts to have the Exchange Offer completed not later than 210 days after the Closing DateSEC. The Company Issuers and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities Notes validly tendered 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 Registrable Security Note not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security Note exchanged pursuant to the Exchange Offer will be required to surrender such Registrable SecurityNote, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Man- hattan, The City of New York) specified in the notice prior to the close cxxxx of business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Man- hattan, The City of New York) specified in the notice a telegram, telextexxx, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities Notes delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Notes exchanged. As soon as practicable after the last Exchange Date, the Company Issuers and the Guarantors shall:
(i) accept for exchange Registrable Securities 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 cancel- lation all Registrable Securities Notes or portions thereof so accepted for exchange ex- change by the Company Issuers and the Guarantors; and
(iii) Guarantors and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security Note equal in principal amount to the principal amount of the Registrable Securities Notes surrendered by such Holder. The Company Each of the Issuers and the Guarantors shall use their commercially reasonable its best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than (i) that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SECSEC and (ii) the tendering of Registrable Notes in accordance with the Exchange Offer and (iii) that there is no injunction, order or decree by any court or any governmental agency that would prohibit, prevent or otherwise materially impair the ability of the Issuers or the Guarantors to proceed with the Exchange Offer. Each Holder of Registrable Notes (other than Participating Broker- Dealers) who wishes to exchange such Registrable Notes for Exchange Notes in the Exchange Offer (a) shall have represented (or by tendering its Regis- trable Notes, be deemed to have represented) that (i) it is not an affiliate (as defined in Rule 405 under the 1933 Act) of any Issuer or Guarantor, (ii) any Exchange Notes to be xxxxxxxd by it were acquired in the ordinary course of its business and (iii) at the time of the commencement of the Exchange Offer, it has no arrangement with any person to participate in the distribution (within the meaning of the 1933 Act) of the Exchange Notes and (b) shall have made xxxx xxxer representations as may reasonably be necessary under appli- cable SEC rules, regulations or interpretations to render the use of Form S-4 or another appropriate form under the 1933 Act available. The Company Issuers and the Guarantors shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities Notes in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2, the registration provisions of this Agreement will continue to apply solely with respect to the Registrable Notes referred to in Section 2(b)(iii) and any Registrable Notes held by a Participating Broker-Dealer, and no Issuer or Guarantor shall have any further obligations to register any other Registrable Notes pursuant to this Agreement.
(b) In the event that (i) the Company Issuers and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date September 23, 1999 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agents a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agents in connection with any offering or sale of Registrable SecuritiesNotes, the Company Issuers and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsIssuers, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Notes and to have such Shelf Registration Statement declared effective by the SEC; provided, that no Holder (other than a Placement Agent) shall be entitled to have the Registrable Notes held by it covered by such Shelf Registration Statement unless such Holder agrees to be bound by all of the provisions of this Agreement applicable to such Holder and furnishes to the Issuers in writing the information specified in Items 507 and Item 508 of Regulation S-K (or any successor provision), as appli- cable. No such Holder shall be entitled to any additional amounts under Section 2(d) until such Holder shall have provided all such information which is required by SEC rules to be included in the Shelf Registration Statement prior to the time it is declared effective. In the event the Company Issuers and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company Issuers and the Guarantors shall use their commercially reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities Notes and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities Notes held by the Initial Purchasers Placement Agents after completion of the Exchange Offer. The Company Issuers and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities Notes or such shorter period that will terminate when all of the Registrable Securities Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration StatementStatement or otherwise cease to be Regis- trable Notes. The Company Issuers and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors them for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company Issuers and the Guarantors agree to furnish to the Holders of Registrable Securities Notes copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company Issuers and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities Notes pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities Notes pursuant to such Registration Regis- tration Statement may legally resume. In the event that neither the Exchange Ex- change Offer is not completed and Registration Statement nor the Shelf Registration Statement is not declared effective on or prior to 210 days from August 24, 1999 (the Closing Date"Effectiveness Dead- line"), the interest rate on the Securities Notes will be increased by 0.25% a per annum rate of 0.5% until the Exchange Offer is completed Registration Statement or the Shelf Registration Statement is declared effective by the SEC. In the event that the Exchange Offer Registration Statement is declared effective but the Exchange Offer is not consummated on or prior to the earlier to occur of the date that is thirty Business Days after the date of effectiveness of the Exchange Offer Registration Statement or the date that is thirty days after the Effectiveness Deadline, the annual interest rate borne by the Notes will be increased by a per annum rate of 0.5% from such time until the Exchange Offer is consummated. The interest rate borne by the Notes will not be subject to increase of more than 0.5% per annum notwithstanding the failure by the Issuers and the Guarantors to meet more than one of such registration requirements or the duration of any such failures.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, each of the Company Issuers and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor it to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Companysuch Issuer's and the Guarantors' or Guarantor's obligations under Section 2(a) and Section 2(b) hereof; provided that, in the case of any terms of this Agreement for which additional interest pursuant to Section 2(d) is expressly provided as a remedy of a violation of such terms, such additional interest shall be the sole monetary damages for such violation.
Appears in 2 contracts
Samples: Registration Rights Agreement (Triarc Companies Inc), Registration Rights Agreement (Rc Arbys Corp)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SECAs promptly as reasonably possible, the Company shall prepare and file with the Guarantors SEC the Shelf Registration Statement relating to all of the Registrable Shares. The Company shall use their its commercially reasonable efforts to (i) cause such Shelf Registration Statement to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable efforts to have at the Exchange Offer completed not earliest practicable time, but in no event later than 210 days after the Closing Date. The Company March 16, 1999 and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 keep such notice is mailed) (the "Exchange Dates");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 days from the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may be, a Shelf Registration Statement providing for effective until the earlier of (A) the sale by the Holders of all of the Registrable Securities and Shares relating to such Shelf Registration Statement, (B) the date upon which the Registrable Shares may be sold without registration under Rule 144(k) promulgated under the 1933 Act ("Rule 144(k)) or (C) three years after the date the Shelf Registration Statement is declared effective; provided, however, that no Holders shall be entitled to have Registrable Shares held by such Holder covered by such Shelf Registration Statement declared effective unless the Holder agrees to be bound by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result all of the matters referred provisions of this Agreement applicable to in clause (iii) such Holder; and provided, further, that, if for any reason the effectiveness of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the expiration of is suspended, the period referred to set forth in Rule 144(kclause (B) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered above shall be extended by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statementaggregate number of days of each suspension period. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if as required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, the Company agrees to furnish the Holder of the Registrable Shares copies of any such supplement or amendment prior to its being used and/or filed with the SEC, and to use their its commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicablepracticable thereafter. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities Shares copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(cb) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(bor (e), whether or not it becomes effective. Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities Shares pursuant to the Shelf Registration Statement.
(dc) An Exchange Offer A Shelf Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, that if, after it has been declared effective, the offering of Registrable Securities Shares pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become been effective during the period of such interference until the offering of Registrable Securities Shares pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and If the Shelf Registration Statement is not declared effective by the SEC on or prior to 210 days March 16, 1999, each Holder shall have the right thereafter to sell to the Company upon demand and the Company shall buy from such Holder on or prior to the Closing Datethird business day following the date of such demand, as many Registrable Shares as such Holder shall elect (but, if the interest rate on Note shall have been paid in full when due, in no event more than the Securities will number of shares that may be increased by 0.25% per annum sold without the consent of the Company under Section 11 of the Stock Purchase Agreement) from time to time, until the Exchange Offer is completed or the Shelf Registration Statement is shall have been declared effective by at a purchase price equal to the SECgreater of $4.00 and the closing price for the Common Stock on the National Association of Securities Dealers Automated Quotations System on the day prior to such sale.
(ed) Without limiting the remedies available to the Initial Purchasers and the HoldersInterested Persons, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders Interested Persons for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder Interested Persons may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof).
Appears in 2 contracts
Samples: Stock Purchase Agreement (Ecoscience Corp/De), Registration Rights Agreement (Cogentrix Delaware Holdings Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SECSEC (the “Staff”), the Company Issuers and the Guarantors shall use their commercially reasonable efforts to cause to be filed filed, within 360 days of the date of the original issuance of the Securities (the “Issue Date”) an Exchange Offer Registration Statement covering the offer by the Company Issuers and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company Issuers and the Guarantors shall use their commercially reasonable efforts to cause such Exchange Offer to be consummated within 450 days of the Issue Date. The Issuers and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable efforts to have the Exchange Offer completed not later than 210 days after the Closing DateSEC. The Company Issuers and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not 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) (each an “Exchange Date” and collectively, the "“Exchange Dates"”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interestinterest (but not Additional Interest), but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address specified in the notice (located in the Borough of Manhattan, The City of New York) prior to the close of business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address specified in the notice (located in the Borough of Manhattan, The City of New York) a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company Issuers and the Guarantors shall:
(i) 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 Issuers and the Guarantors; and
(iii) Guarantors and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company Issuers and the Guarantors shall use their commercially reasonable efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of Staff. Upon the SEC. The Company Initial Purchasers’ request, the Issuers and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. If the Issuers and the Guarantors commence the Exchange Offer, the Issuers and the Guarantors shall be entitled to close the Exchange Offer twenty (20) business days after such commencement (provided that the Issuers and the Guarantors have accepted all the Securities theretofore validly tendered in accordance with the terms of the Exchange Offer). Each Holder participating in the Exchange Offer shall be required to represent to the Issuers and the Guarantors in writing that at the time of the consummation of the Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any Person to participate in the distribution (within the meaning of the 0000 Xxx) of the Exchange Securities and (iii) such Holder is not an affiliate of either of the Issuers or any of the Guarantors within the meaning of Rule 405 of the 1933 Act, or if it is an affiliate such Holder will comply with the registration and prospectus delivery requirements of the 1933 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 Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange 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 be required to acknowledge that it will deliver a prospectus in connection with the resale of such Exchange Securities.
(b) In the event that (i) the Company Issuers and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 consummated within 450 days from of the Closing Issue Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable SecuritiesSecurities because the Securities held by it are not eligible to be exchanged for Exchange Securities in the Exchange Offer, the Company Issuers and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company Issuers and the Guarantors, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company Issuers and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company Issuers and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company Issuers and the Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the expiration earliest of (i) the one year period referred to in Rule 144(kfrom the date declared effective by the SEC or (ii) with respect to the Registrable Securities or such shorter period that will terminate when date on which all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company Issuers and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company Issuers and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company Issuers and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company Issuers and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (i) the Shelf Registration Statement is not filed with the SEC within 360 days of the Issue Date or (ii) the Exchange Offer is not completed and consummated or the Shelf Registration Statement is not declared effective on or prior to 210 within 450 days from of the Closing Issue Date, the interest rate on the Securities will be increased by 0.250.50% per annum until for the first 90-day period thereafter, and the amount of such additional interest will increase by an additional 0.50% for each subsequent 90-day period, up to a maximum of 1.0% over the original interest rate on the Securities (“Additional Interest”). At the time the Exchange Offer is completed consummated or the Shelf Registration Statement is declared effective by the SEC, the interest rate on the Securities shall revert to the original interest rate on the Closing Date and the Issuers and the Guarantors shall no longer be required to pay Additional Interest.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company Issuers and the Guarantors acknowledge that any failure by the Company or any Guarantor Issuers and the Guarantors to comply with its their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' Issuers’ obligations under Section 2(a) and Section 2(b) hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Infosat Communications LP), Registration Rights Agreement (Infosat Communications LP)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Subsidiary Guarantors shall use their commercially reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Subsidiary Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Subsidiary Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable its best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Subsidiary Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 days from the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.such
Appears in 2 contracts
Samples: Registration Rights Agreement (Taco Bueno West Inc), Registration Rights Agreement (Taco Bueno West Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable axxxxxxxxe law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable efforts to (1) cause to be filed an Exchange Offer Registration Statement within 75 days following the Closing Date covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for an equal aggregate principal amount of Exchange Securities and (2) use its reasonable best efforts to cause such Exchange Offer Registration Statement to become effective within 120 days following the Closing Date. The Company shall use its reasonable best efforts to have such the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially its reasonable best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days Business Days from the date such notice is mailed) (the "Exchange Dates");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Registrable Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(iA) accept for exchange Registrable Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer; and
(iiB) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in aggregate principal amount to the aggregate principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially its reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. If, during the period the Exchange Offer Registration Statement is effective, an event occurs which makes any statement made in such Exchange Offer Registration Statement or the related Prospectus untrue in any material respect or which requires the making of any changes in such Exchange Offer Registration Statement or Prospectus in order to make the statements therein not misleading, the Company shall use its reasonable best efforts to prepare and file with the SEC a supplement or post-effective amendment to the Exchange Offer Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company agrees to notify the Holders to suspend the exchange of the Registrable Securities as promptly as practicable after the occurrence of such an event, and the Holders hereby agree to suspend such exchange until the Company has amended or supplemented the Prospectus to correct such misstatement or omission.
(b) In the event that If (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 consummated within 180 days from following the Closing Date or (iii) the Exchange Offer has been completed and in the written opinion of counsel for the Initial Purchasers Holders a Shelf Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers any Holder in connection with any offering reoffering or sale resale of Registrable Securities, the Company and shall (x) file with the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after SEC within 75 days following such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may be, a Shelf Registration Statement providing for the sale resale by the Holders (other than those who fail to comply with the paragraph immediately following clause (p) of Section 3) of all of the their Registrable Securities and (y) use its reasonable best efforts to have cause such Shelf Registration Statement declared to become effective by the SECwithin 60 days thereafter. In the event If the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers reoffers and sales resales of Registrable Securities held by the Initial Purchasers after completion of Holders who must deliver the Exchange Offerrelated Prospectus. The Company and the Guarantors agree agrees to use their commercially its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration StatementStatement or cease to be Registrable Securities within the meaning of this Agreement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts discounts, if any, and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the a Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume.
(e) The Company and the Initial Purchasers agree that the Holders will suffer damages if the Company fails to fulfill its obligations under Section 2(a) or Section 2(b) hereof and that it would not be feasible to ascertain the extent of such damages with precision. In Accordingly, the event Company agrees that if:
(i) the Exchange Offer Registration Statement is not completed and filed with the Shelf SEC on or prior to the 75th day following the Closing Date,
(ii) the Exchange Offer Registration Statement is not declared effective on or prior to 210 days from the 120th day following the Closing Date,
(iii) the Exchange Offer is not completed on or prior to the 180th day following the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or or
(iv) the Shelf Registration Statement is required to be filed but is not filed or declared effective by within the SEC.
(e) Without limiting the remedies available time period set forth herein or is declared effective but thereafter ceases to be effective or usable prior to the Initial Purchasers and expiration of the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor period referred to comply in Rule 144(k) with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury respect to the Initial Purchasers Registrable Securities other than after the Registrable Securities have been disposed of under the Shelf Registration Statement or cease to be Registrable Securities, without being succeeded within two Business Days by a post-effective amendment which cures the Holders for which there failure and that is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.itself immediately declared effective,
Appears in 2 contracts
Samples: Registration Rights Agreement (Transcontinental Gas Pipe Line Corp), Registration Rights Agreement (Transcontinental Gas Pipe Line Corp)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SECSEC (the “Staff”), the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer for each series promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their its commercially reasonable efforts to have the Exchange Offer completed for such series consummated not later than 210 90 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer for each series by mailing sending the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities of such series validly tendered 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 mailedsent, or longer if required by applicable law) (the "“Exchange Dates"”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security of a series exchanged pursuant to the Exchange Offer for such series will be required to surrender such Registrable Security, 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 last Exchange Date; provided, however, that, if any of the Registrable Securities are in book-entry form, such Prospectus and accompanying documents shall also specify how the surrender is to be effected in accordance with applicable book-entry procedures; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange DateDate with respect to an Exchange Offer for Registrable Securities of a series, the Company and the Guarantors shall:
(i1) accept for exchange Registrable Securities of such series or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii2) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities of such series or portions thereof so accepted for exchange by the Company and the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security of such series equal in principal amount to the principal amount of the Registrable Securities of such series surrendered by such Holder; provided that if any of the Registrable Securities are in book-entry form, the Company shall, in cooperation with the Trustee, effect the exchange of Registrable Securities in accordance with applicable book-entry procedures. The Company and the Guarantors shall use their its commercially reasonable efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Upon request by the Initial Purchasers, the Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Each Holder that participates in the Exchange Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Company in writing (which may be contained in the applicable letter of transmittal) that at the time of consummation of the Exchange Offer: (i) any Exchange Securities received in exchange for Registrable Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Securities; (ii) such Holder has no arrangements or understandings with any Person to participate in the distribution (within the meaning of the 0000 Xxx) of the Exchange Securities within the meaning of the 1933 Act; (iii) such Holder is not an “affiliate” (as defined in Rule 405 of the 0000 Xxx) of the Company; (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 Exchange Securities; and (v) if such Holder is a Participating Broker-Dealer, such Holder will receive Exchange 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 1933 Act (including, but not limited to, the prospectus delivery requirements thereunder).
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SECStaff, (ii) the Exchange Offer is not for any other reason completed by 210 days from consummated on or prior to the 365th day following the Closing Date (or if such 365th day is not a business day, the next succeeding business day) or (iii) any Holder of Registrable Securities of the applicable series notifies the Company prior to the 20th day following the consummation of the Exchange Offer has been completed and that (A) it is prohibited by law or SEC policy from participating in the opinion of counsel for Exchange Offer, (B) it may not resell the Initial Purchasers Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Offer Registration Statement must be filed is not appropriate or available for such resales, or (C) it is a broker-dealer and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, owns Securities acquired directly from the Company and or an affiliate of the Guarantors Company, then the Company shall use their its commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities of such series (other than those who fail to comply with the immediately preceding paragraph and Section 3(b) hereof) and to have such Shelf Registration Statement declared effective by the SECSEC promptly. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their its commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their its commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until two years from the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities Closing Date or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration StatementStatement or cease to be Registrable Securities within the meaning of this Agreement (the “Shelf Registration Period”). The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their its commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement or Free Writing Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC; provided that the Company shall be deemed to have furnished such amendment or supplement if it shall have timely made such amendment or supplement available on “XXXXX.”
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities pursuant to the Shelf Registration StatementStatement and any other expenses incurred by it that are not Registration Expenses.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SECSEC or become effective automatically upon filing; provided, however, that, if, that if after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become been effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event (1) the Exchange Offer is not completed and consummated on or prior to the 365th day following the Closing Date, (2) the Shelf Registration Statement Statement, if required pursuant to Section 2(b), is not declared effective on or prior to 210 days from the 365th day following the Closing Date, or (3) in the case of a Shelf Registration Statement, it becomes effective and thereafter ceases to be effective or usable (x) at any time during the Shelf Registration Period and such failure to remain effective or usable exists for more than 30 days (whether or not consecutive) in any 12-month period or (y) on more than two occasions in any 12-month period during the Shelf Registration Period (each such event referred to in clauses (1), (2) and (3), a “Registration Default”), then with respect to the first 90-day period immediately following the occurrence of such Registration Default, the interest rate on the Registrable Securities of the applicable series will be increased by 0.25% per annum until and will increase by an additional 0.25% per annum on the principal amount of Securities with respect to each subsequent 90-day period, up to maximum amount of additional interest of 0.50% per annum (“Additional Interest”). Additional Interest, if any, will be paid by the Company on each interest payment date to Holders in the same manner as payments of interest on the Securities. A Registration Default ends when the Securities cease to be Registrable Securities or, if earlier, (i) in the case of a Registration Default under clause (1) of the definition thereof, when the Exchange Offer for such series is completed or the Shelf Registration Statement covering such Registrable Securities becomes effective, (ii) in the case of a Registration Default under clause (2) of the definition thereof, when the Shelf Registration Statement becomes effective or (iii) in the case of a Registration Default under clause (3) of the definition thereof, when the Shelf Registration Statement again becomes effective and usable. If at any time more than one Registration Default has occurred and is declared effective continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the SECdate that the earliest such Registration Default occurred and ends on such next date on which there is no Registration Default. A Holder of Registrable Securities or Exchange Securities who is not entitled to the benefits of the Shelf Registration Statement (including because such Holder has failed to comply with the paragraph immediately preceding clause (b) of Section 2 and Section 3(b) hereof) shall not be entitled to Additional Interest with respect to a Registration Default that pertains to the Shelf Registration Statement.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' ’s obligations under Section 2(a) and Section 2(b) hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Dow Inc.), Registration Rights Agreement (Dow Chemical Co /De/)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company Operating Partnership and the Guarantors shall use their commercially reasonable efforts to cause to be filed after the Closing Date an Exchange Offer Registration Statement covering the offer by the Company Operating Partnership and the Guarantors to the Holders to exchange all of the Registrable Securities Notes for Exchange Securities Notes, use their commercially reasonable efforts to have such Registration Statement declared effective by the SEC, and to have such Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer. The Company Operating Partnership and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable efforts to have the Exchange Offer completed consummated not later than 210 180 days after the Closing Date. The Company Operating Partnership and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities Notes validly tendered 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 Registrable Security Note not tendered will remain outstanding and continue to accrue interestinterest in accordance with the terms of the Notes, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security Note exchanged pursuant to the Exchange Offer will be required to surrender such Registrable SecurityNote, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities Notes delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Notes exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors Operating Partnership shall:
(i) accept for exchange Registrable Securities Notes or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee Registrar for cancellation all Registrable Securities Notes or portions thereof so accepted for exchange by the Company Operating Partnership and the Guarantors; and
(iii) issue, and cause the Trustee or the authenticating agent to promptly authenticate and mail to each Holder, an Exchange Security Note equal in principal amount to the principal amount of the Registrable Securities Notes surrendered by such Holder. The Company Operating Partnership and the Guarantors shall use their commercially reasonable efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors Operating Partnership shall inform the Initial Purchasers Purchasers, if requested by the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities Notes in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine Operating Partnership determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 consummated on or prior to 180 days from after the Closing Date Date, or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable SecuritiesNotes, the Company Operating Partnership and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may beOperating Partnership, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Notes and use their commercially reasonable efforts to have such Shelf Registration Statement declared effective by the SEC. In the event the Company Operating Partnership and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company Operating Partnership and the Guarantors shall file and use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities Notes and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities Notes held by the Initial Purchasers after completion of the Exchange Offer. The Company Operating Partnership and the Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the expiration of date that is one year after the period referred to in Rule 144(k) with respect to the Registrable Securities first date on which such Shelf Registration Statement becomes effective or such shorter period that will terminate earlier date when all of the Registrable Securities Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company Operating Partnership and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company Operating Partnership and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their its commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree Operating Partnership agrees to furnish to the Holders of Registrable Securities Notes copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company Operating Partnership and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities Notes pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities Notes pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that the Exchange Offer is not completed consummated, and if a Shelf Registration Statement is required hereby, the Shelf Registration Statement is not declared effective on or prior to 210 180 days from after the Closing Date, the interest rate on the Securities Notes (and the Exchange Notes) will be increased increase by 0.250.5% per annum until the Exchange Offer is completed consummated or the a Shelf Registration Statement is declared effective by the SECeffective.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company Operating Partnership and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its their respective obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's respective obligations of the Operating Partnership and the Guarantors' obligations Guarantors under Section 2(a) and Section 2(b) hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (FelCor Lodging LP), Registration Rights Agreement (FelCor Lodging Trust Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors Issuers shall use their commercially reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors Issuers to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors Issuers shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors Issuers shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for of election of exchange (which shall be a period of at least 20 30 business days from the date such notice is mailed) (the "Exchange Dates");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors Issuers shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors Issuers shall use their commercially reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any material conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors Issuers shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors Issuers determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from 210th day after the Closing Issue Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agents a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agents in connection with any offering or sale of Registrable Securities, the Company and the Guarantors Issuers shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors Issuers are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors Issuers shall use their commercially reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers Placement Agents after completion of the Exchange Offer. The Company and the Guarantors Issuers agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors Issuers further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors Issuers for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors Issuers agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors Issuers shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event the Exchange Offer is not completed consummated and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Dateas set forth below, then, the interest rate on the Securities will be increased by (the "Additional Interest") as follows:
(i) if (A) neither the Exchange Offer Registration Statement nor a Shelf Registration Statement has been filed with the SEC on or prior to the 90th day after the Issue Date or (B) the Issuers are required to file a Shelf Registration Statement pursuant to Section 2(b)(iii) hereof and such Shelf Registration Statement is not filed on or prior to the Filing Date applicable thereto then, commencing on the day after either such 90th day in the case of clause (A) or such Filing Date in the case of clause (B), Additional Interest shall accrue on the principal amount of the Registrable Securities at a rate of 0.25% per annum until for the first 90 days immediately following thereafter, and such Additional Interest rate shall increase by an additional 0.25% per annum at the beginning of each subsequent 90-day period; or
(ii) if (A) neither the Exchange Offer is completed or the Registration Statement nor a Shelf Registration Statement is declared effective by the SECSEC on or prior to the 180th day after the Issue Date or (B) the Issuers are required to file a Shelf Registration Statement pursuant to Section 2(b)(iii) hereof and such Shelf Registration Statement is not declared effective by the SEC on or prior to the 90th day following the Filing Date applicable thereto then, commencing on the day after either such 180th day in the case of clause (A) or Filing Date in the case of clause (B), Additional Interest shall accrue on the principal amount of the Registrable Securities at a rate of 0.25% per annum for the first 90 days immediately following thereafter, and such Additional Interest rate shall increase by an additional 0.25% per annum at the beginning of each subsequent 90-day period; or
(iii) subject to Sections 2(f) and 2(g) if (A) the Issuers have not exchanged Exchange Securities for all Securities validly tendered in accordance with the terms of the Exchange Offer on or prior to the 210th day after the Issue Date or (B) if applicable, the Shelf Registration Statement has been declared effective and such Shelf Registration Statement ceases to be effective at any time prior to the second anniversary of the Closing Date (or, if earlier, the date when all Securities have been disposed of thereunder), then Additional Interest shall accrue on the principal amount of the Registrable Securities at a rate of 0.25% per annum for the first 90 days commencing on (x) the 211th day after the Closing Date, in the case of (A) above, or (y) the day such Shelf Registration Statement ceases to be effective in the case of (B) above, and such Additional Interest rate shall increase by an additional 0.25% per annum at the beginning of each subsequent 90-day period; provided, however, that the Additional Interest rate on the Securities may not exceed in the aggregate 1.0% per annum; provided further, that the Issuers shall in no event be required to pay additional interest for more than one event in clauses (i), (ii), or (iii) at any one time; provided further, however, that (1) upon the filing of the Exchange Offer Registration Statement or a Shelf Registration Statement (in the case of clause (a) above), (2) upon the effectiveness of the Exchange Offer Registration or a Shelf Registration Statement (in the case of clause (b) above), or (3) upon the exchange of Exchange Securities for all Securities tendered (in the case of clause (c)(A) above), or upon the effectiveness of the Shelf Registration Statement which had ceased to remain effective (in the case of clause (c)(B) above), Additional Interest on the Securities as a result of such clause (or the relevant subclause thereof), as the case may be, shall cease to accrue.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Company and the Guarantors Issuers acknowledge that any failure by the Company or any Guarantor Issuers to comply with its their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Companyany Issuer's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Dresser International Inc), Registration Rights Agreement (Dresser Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SECSEC (the “Staff”), the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their its commercially reasonable efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing sending the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 mailedsent, or longer if required by applicable law) (the "“Exchange Dates"”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; provided, however, that, if any of the Registrable Securities are in book-entry form, such Prospectus and accompanying documents shall also specify how the surrender is to be effected in accordance with applicable book-entry procedures; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i1) accept for exchange Registrable Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii2) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder; provided that if any of the Registrable Securities are in book-entry form, the Issuers shall, in co-operation with the Trustee, effect the exchange of Registrable Securities in accordance with applicable book-entry procedures. The Company and the Guarantors shall use their commercially reasonable efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Each Holder that participates in the Exchange Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Company in writing (which may be contained in the applicable letter of transmittal) that at the time of consummation of the Exchange Offer: (i) any Exchange Securities received in exchange for Registrable Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Securities; (ii) such Holder has no arrangements or understandings with any Person to participate in the distribution (within the meaning of the 1000 Xxx) of the Exchange Securities within the meaning of the 1933 Act; (iii) such Holder is not an “affiliate” (as defined in Rule 405 of the 1000 Xxx) of the Company; (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 Exchange Securities; and (v) if such Holder is a Participating Broker-Dealer, such Holder will receive Exchange 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 1933 Act (including, but not limited to, the prospectus delivery requirements thereunder).
(b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SECStaff, (ii) the Exchange Offer is not for any other reason completed by 210 days from consummated on or prior to the 365th day following the Closing Date (or if such 365th day is not a Business Day, the next succeeding Business Day) or (iii) any Holder of Registrable Securities notifies the Company that (A) it is prohibited by law or SEC policy from participating in the Exchange Offer, (B) it may not resell the Exchange Securities acquired by it in the Exchange Offer has been completed to the public without delivering a prospectus and the prospectus contained in the opinion of counsel for the Initial Purchasers a Exchange Offer Registration Statement must be filed is not appropriate or available for such resales, or (C) it is a broker-dealer and a Prospectus must be delivered by owns Securities acquired directly from the Initial Purchasers in connection with any offering Company or sale an affiliate of Registrable Securitiesthe Company, then the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SECSEC promptly. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until two years from the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities Closing Date or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration StatementStatement (the “Shelf Registration Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement or Free Writing Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC; provided that the Company shall be deemed to have furnished such amendment or supplement if it shall have timely made such amendment or supplement available on “EXXXX.”
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities pursuant to the Shelf Registration StatementStatement and any other expenses incurred by it that are not Registration Expenses.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SECSEC or become effective automatically upon filing; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become been effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event (1) the Exchange Offer is not completed and consummated on or prior to the 365th day following the Closing Date, (2) the Shelf Registration Statement Statement, if required pursuant to Section 2(b), is not declared effective on or prior to 210 days from the 365th day following the Closing Date, or (3) in the case of a Shelf Registration Statement, it becomes effective and thereafter ceases to be effective or usable (x) at any time during the Shelf Registration Period and such failure to remain effective or usable exists for more than 30 days (whether or not consecutive) in any 12-month period or (y) on more than two occasions in any 12-month period during the Shelf Registration Period (each such event referred to in clauses (1), (2) and (3), a “Registration Default”), then with respect to the first 90-day period immediately following the occurrence of such Registration Default, the interest rate on the Registrable Securities will be increased by 0.25% per annum until and will increase by an additional 0.25% per annum on the principal amount of Securities with respect to each subsequent 90-day period, up to maximum amount of additional interest of 1.00% per annum (“Additional Interest”). Additional Interest, if any, will be paid by the Company or the Guarantors on each interest payment date to Holders in the same manner as payments of interest on the Securities. A Registration Default ends when the Securities cease to be Registrable Securities or, if earlier, (i) in the case of a Registration Default under clause (1) of the definition thereof, when the Exchange Offer is completed or the Shelf Registration Statement becomes effective, (ii) in the case of a Registration Default under clause (2) of the definition thereof, when the Shelf Registration Statement becomes effective or (iii) in the case of a Registration Default under clause (3) of the definition thereof, when the Shelf Registration Statement again becomes effective and usable. If at any time more than one Registration Default has occurred and is declared effective continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the SECdate that the earliest such Registration Default occurred and ends on such next date on which there is no Registration Default.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its their respective obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's ’s and the Guarantors' ’ obligations under Section 2(a) and Section 2(b) hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (American Axle & Manufacturing Holdings Inc), Registration Rights Agreement (American Axle & Manufacturing Holdings Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff staff of the SEC, the Company and the Guarantors shall use their commercially its reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities Securities, to cause such Exchange Offer Registration Statement to be declared effective and to have such Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly as soon as reasonably practicable after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially its reasonable best efforts to have the Exchange Offer completed not later than 210 within 240 days after the Closing Issuance Date; provided that the Company will not include Securities held by any of its “affiliates” (as such term is defined in Rule 144 under the 0000 Xxx) in such Exchange Offer in accordance with the interpretations of the staff of the SEC. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days and not more than 40 business days, or longer if required by applicable law, from the date such notice is mailed) (the "“Exchange Dates"”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the United States) specified in the notice notice, or effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business business, New York City time, on the last Exchange Date, by sending to the institution and at the address (located in the United States) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchangedexchanged or effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As soon as reasonably practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail deliver to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. Interest on each Exchange Security will accrue from the last interest payment date on which interest was paid on the Securities surrendered in exchange therefor or, if no interest has been paid on the Securities, from the Issuance Date. The Company and the Guarantors shall use their commercially its reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff staff of the SEC. The Company SEC and other customary conditions for “A/B” exchange offers for debt securities similar to the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange OfferSecurities.
(b) In the event that (i) the Company and determines upon the Guarantors determine advice of the Company’s outside counsel that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 within 240 days from after the Closing Issuance Date (the “Exchange Offer Consummation Deadline”) or (iii) any Holder notifies the Company that it is not eligible to participate in the Exchange Offer has been completed and (other than by virtue of being an “affiliate” of the Company (as defined in Rule 144 under the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities1933 Act)), the Company and the Guarantors shall use their commercially its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to no later than the Company and the Guarantors, as the case may be, applicable Filing Date a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to use its reasonable best efforts to have such Shelf Registration Statement declared effective by the SECSEC within 60 days after the applicable Filing Date. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers Holders after completion of the Exchange Offer. The Subject to the Company’s right to suspend the use of the Shelf Registration Statement during the Suspension Period (as defined in Section 3), the Company and the Guarantors agree agrees to use their commercially its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration earlier of (i) the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all first anniversary date of the Registrable Securities covered by the Shelf Registration Statement and (ii) such time as all of the Securities cease to be outstanding or have either been (A) sold or otherwise transferred pursuant to an effective registration statement or (B) sold pursuant to Rule 144 under the 1933 Act or have become freely transferable by Persons other than “affiliates” (as defined in Rule 144 under the 0000 Xxx) of the Company pursuant to Rule 144 of the 1933 Act, in each case, under circumstances in which any legend borne by the Securities relating to restrictions on transferability thereof is removed, or is subject to removal at the request of the Holder, the Securities do not (or are not required to) bear a restricted CUSIP number and such Securities are eligible to be sold pursuant to Rule 144, or any successor provision, of the 1933 Act (the “Shelf Registration StatementEffectiveness Period”). The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement or Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities Securities, upon request by such Holders, copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement SEC or is interfered automatically effective upon filing with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or courtas provided by Rule 462 under the 1933 Act. As provided for in the Indenture, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In in the event the Exchange Offer is not completed consummated and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Dateas set forth below, then the interest rate on the Securities will be increased (the “Additional Interest”) as follows:
(i) if the Company is required to file a Shelf Registration Statement and such Shelf Registration Statement is not declared effective by the SEC within 60 days after the applicable Filing Date then, commencing on the 61st day following the applicable Filing Date, Additional Interest shall accrue on the principal amount of the Registrable Securities at a rate of 0.25% per annum until for the first 90 days immediately following thereafter, and such Additional Interest rate shall increase by an additional 0.25% per annum after the first 90 days; or
(ii) if (A) the Company has not exchanged Exchange Securities for all Securities validly tendered in accordance with the terms of the Exchange Offer is completed on or prior to the Exchange Offer Consummation Deadline or (B) if applicable, the Shelf Registration Statement is has been declared effective and such Shelf Registration Statement ceases to be effective or usable during the Shelf Registration Effectiveness Period that exceeds the Suspension Period (as defined in Section 3), then Additional Interest shall accrue on the principal amount of the Registrable Securities at a rate of 0.25% per annum for the first 90 days commencing on the day after the Exchange Offer Consummation Deadline in the case of clause (A) or the day such Shelf Registration Statement ceases to be effective or usable during the Shelf Registration Effectiveness Period in excess of the Suspension Period in the case of clause (B), and such Additional Interest rate shall increase by an additional 0.25% per annum after the first 90 days (it being understood and agreed that, notwithstanding any provision to the contrary, so long as any Securities not registered under an Exchange Offer Registration Statement are then covered by an effective Shelf Registration, no Additional Interest shall accrue on such Securities); provided, however, that the Additional Interest rate on the Securities may not exceed in the aggregate 0.50% per annum; provided further, however, that in no event shall the Company be obligated to pay Additional Interest under more than one of the clauses in this Section 2(d) at any one time; provided further, however, that (1) upon the effectiveness of a Shelf Registration Statement (in the case of clause (i) above), (2) upon the exchange of Exchange Securities for all Securities tendered (in the case of clause (ii)(A) above), or upon the effectiveness of the Shelf Registration Statement which had ceased to remain effective (in the case of clause (ii)(B) above), or (3) upon the Securities being sold pursuant to Rule 144 under the 1933 Act or having become freely transferable by Persons other than “affiliates” (as defined in Rule 144 under the 0000 Xxx) of the Company pursuant to Rule 144 under the Securities Act, in each case, under circumstances in which any restrictive legend borne by the SECSecurities is removed or is subject to removal at the request of the Holder, the Securities do not (or are not required to) bear a restricted CUSIP number and such Securities are eligible to be sold pursuant to Rule 144 or any successor provisions, as the case may be, in the case of either clause (i) or (ii) above, Additional Interest on the Securities as a result of such clause (or the relevant subclause thereof), as the case may be, shall cease to accrue.
(e) Without limiting the remedies available to the The Initial Purchasers and the Trustee shall be entitled, on behalf of the Holders, to seek any available remedy for the Company and enforcement of this Agreement. Notwithstanding the Guarantors acknowledge foregoing, the parties agree that the exclusive remedy, monetary or otherwise, available to any failure by Holder with respect to the Company or any Guarantor to comply with its obligations under Section 2(aregistration defaults set forth in Sections 2(d)(i) and Section 2(b(ii) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at lawshall be Additional Interest.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not be possible prepare, make, use, authorize, approve or refer to measure damages for such injuries precisely and that, any Free Writing Prospectus that may correct a material misstatement or omission contained in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereofRegistration Statement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Amkor Technology Inc), Registration Rights Agreement (Amkor Technology Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially its reasonable best efforts (i) to cause to be filed with the SEC an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities Securities, (ii) to have the Exchange Offer Registration Statement declared effective and (iii) to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially its reasonable best efforts to have the Exchange Offer completed consummated not later than 210 the date that is 270 days (or, if such date is not a Business Day, the first Business Day thereafter) after the Closing DateTime. The Company and shall, or shall cause the Guarantors shall Trustee to, commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:: Reg Rts Agreement
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business 30 days (or such shorter period as allowed by applicable law or SEC rules and interpretations) from the date such notice is mailed) (the "Exchange Dates");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address specified in the notice notice, prior to the close of business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing his election to have such Registrable Securities exchanged. As soon as practicable after the last Exchange Date, the Company and shall or shall cause the Guarantors shallTrustee to:
(i) 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 Company, and the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security Securities equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws laws, rules and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Each Holder participating in the Exchange Offer shall be required to represent to the Company at or prior to the consummation of the Exchange Offer that (i) any Exchange Reg Rts Agreement Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Offered Securities or the Exchange Securities within the meaning of the 1933 Act, and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the 1933 Act, of the Company, nor a broker-dealer tendering Offered Securities acquired directly from the Company for its own account. If such Holder is a broker-dealer, it will be required to represent that the Offered Securities were acquired as a result of market-marking activities or other trading activities and that it will deliver a prospectus in connection with any resale of such Exchange Securities. Each such Holder, whether or not it is a broker-dealer, shall also represent that it is not acting on behalf of any person that could not truthfully make any of the foregoing representations contained in this paragraph. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply (to the extent applicable) solely with respect to Registrable Securities held by the Initial Purchasers or any Participating Broker-Dealers (as defined in Section 4(a)) as provided in (and subject to) Section 2(b)(ii), and the Company shall have no further obligation to register Offered Securities (other than such Registrable Securities of the Initial Purchasers and Participating Broker-Dealers) pursuant to Section 2(b) of this Agreement.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, or (ii) the Exchange Offer is not for any other reason completed by 210 days from the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any primary offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities (in the case of clause (i) above) or by the Initial Purchasers (in the case of clause (ii) above) and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iiiii) of the preceding sentence, the Company and the Guarantors shall use their commercially its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration for a period of the period referred to in Rule 144(k) two years after its effective date with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration StatementStatement or may be freely sold pursuant to Rule 144(k) under the 1933 Act. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder Reg Rts Agreement for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, that if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Shelf Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that neither the consummation of the Exchange Offer nor the declaration by the SEC of a Shelf Registration to be effective (each a "Registration Event") occurs on or prior to the 270th day (or, if such 270th day is not a Business Day, the first Business Day thereafter) after the Closing Time, the interest rate per annum borne by the Offered Securities shall be increased by 0.50%, effective from and including such 270th day (or, if such 270th day is not a Business Day, the first Business Day thereafter), to but excluding the date on which a Registration Event occurs provided that if, to permit additional Holders of Offered Securities (who have notified the Company in writing of their intention to participate in the Exchange Offer) to participate in the Exchange Offer, the length of such Exchange Offer is extended beyond such 270th day (or, if such 270th day is not a Business Day, the first business day thereafter), the interest rate shall not be increased if the Exchange Offer is not completed and consummated within 60 days of such extension. In the event that the Shelf Registration Statement is required to be effective pursuant to Section 2(b) hereof ceases to be effective at any time during the period specified by Section 2(b) hereof for more than 60 days, whether or not declared effective on or prior to 210 days from the Closing Dateconsecutive, during any 12-month period, the interest rate on borne by the Offered Securities will shall be increased by 0.250.50% per annum from the 61st day of the applicable 12-month period such Shelf Registration Statement ceases to be effective until the Exchange Offer is completed or such time as the Shelf Registration Statement is declared effective by the SECagain becomes effective.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the each Initial Purchasers Purchaser or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.. Reg Rts Agreement
Appears in 1 contract
Samples: Registration Rights Agreement (American Airlines Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed filed, no later than 90 days after the Closing Date, an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable its best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities 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 Registrable Securities or portions thereof so accepted for exchange by the Company and the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable its best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date August 28, 1997 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agents a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agents in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and use its best efforts have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers Placement Agents after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially reasonable its best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the all Registrable Securities covered by the Shelf Registration Statement or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; providedPROVIDED, howeverHOWEVER, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that the Exchange Offer is not completed consummated, and the a Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing DateAugust 28, 1997, the interest rate on the Securities (and the Exchange Securities) will be increased permanently increase by 0.250.5% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SECannum.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Dobson Communications Corp)
Registration Under the 1933 Act. (a) To the extent not ------------------------------- prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable its best efforts (A) to cause to be filed file with the SEC within 120 days after the Closing Date an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities Certificates for Exchange Securities Certificates and (B) to have cause such Exchange Offer Registration Statement remain to be declared effective until by the closing of SEC within 180 days after the Exchange OfferClosing Date. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable efforts to have the Exchange Offer completed not later than 210 days after the Closing DateSEC. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities Certificates validly tendered will be accepted for exchange;
(ii) the dates of acceptance period for exchange (which shall be a period of at least 20 consecutive business days from the date such notice is mailed) (such days being the "Exchange Dates");
(iii) that any Registrable Security Certificate not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security Certificate exchanged pursuant to the Exchange Offer will be required to surrender such Registrable SecurityCertificate, together with the enclosed letters of transmittal, to the institution and at the address office specified in the notice prior to the close of business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address office specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities Certificates delivered for exchange exchange, and a statement that such Holder is withdrawing his election to have such Securities Certificates exchanged. As soon as practicable after the last Exchange Date, the Company and shall or shall cause the Guarantors shallTrustees to:
(i) accept for exchange Registrable Securities Certificates or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer; and;
(ii) deliver, or cause to be delivered, to the Class A Trustee for cancellation all Class A Registrable Securities Certificates or portions thereof so accepted for exchange by the Company Company, and the Guarantors; and
(iii) issue, and cause the Class A Trustee to promptly authenticate and mail to each Class A Holder, an Class A Exchange Security Certificates equal in principal amount to the principal amount of the Class A Registrable Securities Certificates surrendered by such Class A Holder;
(iii) deliver, or cause to be delivered, to the Class B Trustee for cancellation all Class B Registrable Certificates or portions thereof so accepted for exchange by the Company, and issue, and cause the Class B Trustee to promptly authenticate and mail to each Class B Holder, Class B Exchange Certificates equal in principal amount to the principal amount of the Class B Registrable Certificates surrendered by such Class B Holder; and
(iv) deliver, or cause to be delivered, to the Class C Trustee for cancellation all Class C Registrable Certificates or portions thereof so accepted for exchange by the Company, and issue, and cause the Class C Trustee to promptly authenticate and mail to each Class C Holder, Class C Exchange Certificates equal in principal amount to the principal amount of the Class C Registrable Certificates surrendered by such Class C Holder. The Company and the Guarantors shall use their commercially reasonable its best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities Certificates in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer Registration Statement is not declared effective by within 180 days after the Closing Date, (iii) the Exchange Offer is not for any other reason completed by consummated within 210 days from after the Closing Date or (iiiiv) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agents a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agents in connection with any offering or sale of Registrable SecuritiesCertificates, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed file as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Certificates, and shall use its best efforts to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective SEC by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with 180th day after the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange OfferClosing Date. The Company and the Guarantors agree agrees to use their commercially reasonable its best efforts to keep the Shelf Registration Statement continuously effective until the expiration second anniversary of the period referred to in Rule 144(k) with respect to the Registrable Securities Closing Date or such shorter period that will terminate when all of the Registrable Securities Certificates covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement Statement, if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities Certificates copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities Certificates pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, that if, after it has been declared effective, the -------- ------- offering of Registrable Securities Certificates pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Shelf Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities Certificates pursuant to such Registration Statement may legally resume. In As provided for in the Trust Agreements, the interest rate on the Class A Certificates, the Class B Certificates and the Class C Certificates shall be 8.82%, 10.07% and 11.19%, per annum, respectively; however, in the event that the Exchange Offer is not completed and consummated and, if a Shelf Registration Statement is required hereby, the Shelf Registration Statement is not declared effective (each a "Registration Event") on or prior to 210 days from the 210/th/ day after the Closing Date, the interest rate on borne by the Securities Certificates will be increased increase by 0.250.50% per annum until annum, effective from and including such 210/th/ day to but excluding the date on which the Exchange Offer is completed consummated or the a Shelf Registration Statement is declared effective by the SECeffective.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Midway Airlines Corp)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable its best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;; EXHIBIT 4.18
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(iA) accept for exchange Registrable Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer; and
(iiB) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable its best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date June 18, 1998 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agents a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agents in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable its best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers Placement Agents after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially reasonable its best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) under the 1933 Act with respect to the all Registrable Securities covered by the Shelf Registration Statement or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicablepracticable thereafter. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event the Exchange Offer is not completed consummated and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing DateJune 18, 1998, the annual interest rate on the Securities (and the Exchange Securities) will be increased increase by 0.25.5% per annum until the Exchange Offer is completed consummated or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Acme Metals Inc /De/)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors Guarantor shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights AgreementAgreement (including any right to have the interest rate thereon increased pursuant hereto);
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an 8 6 Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors Guarantor shall use their commercially reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 days from the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors Guarantor shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and shall (A) prepare and, on or prior to 90 days after the Guarantors shall use their commercially reasonable efforts to cause to be filed Issue Date, file with the SEC an Exchange Offer Registration Statement covering with respect to the offer Exchange Offer, (B) use its reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective by the Company SEC under the 1933 Act on or prior to 180 days after the Issue Date, and the Guarantors to the Holders to exchange all of the Registrable Securities for (C) cause such Exchange Securities and to have such Offer Registration Statement to remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially its reasonable best efforts to have the Exchange Offer completed consummated not later than 210 45 days after such effective date (unless a longer time is required by the Closing DateU.S. federal securities laws). The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not validly 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 that, subject to Section 2(b) hereof, any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially its reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Each Holder of Registrable Securities, as a condition to its participation in the Exchange Offer, (A) shall represent to the Company and its counsel in writing (which may be contained in the applicable letter of transmittal), that (i) any Exchange Securities 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 0000 Xxx) of the Exchange Securities in violation of the 1933 Act, and (iii) such Holder is not an affiliate (as defined in Rule 405 under the 0000 Xxx) of the Company and (B) shall make such other representations as may reasonably be necessary under applicable SEC rules, regulations or interpretations to render the use of Form F-4 or another appropriate form under the 1933 Act available. No securities shall be included in the Exchange Offer Registration Statement other than the Exchange Securities.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, or (ii) any Holder of a Registrable Security notifies the Company prior to the 20th day after consummation of the Exchange Offer that (A) due to a change in law or policy it is not for any other reason completed entitled to participate in the Exchange Offer, (B) due to a change in law or policy it may not resell Exchange Securities acquired by 210 days from the Closing Date or (iii) it in the Exchange Offer has been completed to the public without delivering a prospectus and the Prospectus contained in the opinion of counsel for the Initial Purchasers a Exchange Offer Registration Statement must be filed and is not appropriate or available for such resales by such Holder or (C) it is a Prospectus must be delivered by broker-dealer that holds Securities acquired directly from the Initial Purchasers Company or one of its affiliates (as defined in connection with any offering or sale of Registrable SecuritiesRule 405 under the 1933 Act), the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable and in any event on or prior to 90 days after such determinationdetermination is made, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, use its reasonable best efforts to file a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the SEC as soon as practicable and in any event the Company and the Guarantors are required on or prior to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers 180 days after completion of the Exchange Offersuch filing obligation arises. The Company and the Guarantors agree agrees to use their commercially its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Millicom International Cellular Sa)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed after the Closing Date an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities Notes for Exchange Securities Notes, use its best efforts to have such Registration Statement declared effective by the SEC, and to have such Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable its best efforts to have the Exchange Offer completed consummated not later than 210 180 days after the Closing Date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities Notes validly tendered 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 DatesEXCHANGE DATES");
(iii) that any Registrable Security Note not tendered will remain outstanding and continue to accrue interestinterest in accordance with the terms of the Notes, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security Note exchanged pursuant to the Exchange Offer will be required to surrender such Registrable SecurityNote, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities Notes delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Notes exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities Notes 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 Notes or portions thereof so accepted for exchange by the Company and the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security Note equal in principal amount to the principal amount of the Registrable Securities Notes surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable its best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents, if requested by the Placement Agents, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities Notes in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 consummated on or prior to 180 days from after the Closing Date Date, or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agents a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agents in connection with any offering or sale of Registrable SecuritiesNotes, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may beCompany, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Notes and use its best efforts to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company shall file and the Guarantors shall use their commercially reasonable its best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities Notes and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities Notes held by the Initial Purchasers such Placement Agents after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially reasonable its best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to all Registrable Notes covered by the Registrable Securities Shelf Registration Statement or such shorter period that will terminate when all of the Registrable Securities Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities Notes copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities Notes pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities Notes pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that the Exchange Offer is not completed consummated, and if a Shelf Registration Statement is required hereby, the Shelf Registration Statement is not declared effective on or prior to 210 180 days from after the Closing Date, the interest rate on the Securities Notes (and the Exchange Notes) will be increased increase by 0.250.5% per annum until the Exchange Offer is completed consummated or the a Shelf Registration Statement is declared effective by the SECeffective.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Felcor Lodging Trust Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff staff of the SEC, the Company and the Guarantors Guarantor shall use their commercially reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors Guarantor to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors Guarantor shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors Guarantor shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his its election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable its best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date September 19, 2002 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agents addressed to the Company and the Guarantor a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agents in connection with any offering or sale of Registrable SecuritiesSecurities by a Holder that (A) is or was prohibited by law or Commission policy from participating in the Exchange Offer or (B) may not resell the Exchange Securities 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 by such Holder or (C) is a Participating Broker-Dealer and holds Registrable Securities acquired directly from the Company or any of its Affiliates, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed as soon as practicable after such determination, date or notice receipt of such opinion of counsel is given to by the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors Guarantor are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors Guarantor shall use their commercially reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers Placement Agents after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially reasonable its best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Shelf Holder with respect to information relating to such Shelf Holder, and to use their commercially reasonable its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Shelf Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume; provided further that if the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with as described in the previous sentence by reason of any information relating to a Shelf Holder furnished to the Company in writing by such Shelf Holder expressly for use in such Shelf Registration Statement, then the provisions of the following sentence shall be inapplicable with respect to such Shelf Holder. In the event that either the Exchange Offer is not completed and the consummated or any Shelf Registration Statement required to be filed pursuant to this Agreement is not declared effective on or prior to 210 days from the Closing DateSeptember 19, 2002, the interest rate on the Securities will be increased by 0.250.5% per annum until the Exchange Offer is completed or the consummated and any Shelf Registration Statement required to be filed pursuant to this Agreement is declared effective by the SEC; provided that such interest rate shall not be increased pursuant to this Section 2(d) if the Company and the Guarantor are required to file the Shelf Registration Statement solely as a result of matters referred to in clause (iii) of the first sentence of Section 2(b) hereof and the Company and the Guarantor shall not have received the opinion of counsel referred to in such clause (iii) upon or prior to the consummation of the Exchange Offer.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Coast Hotels & Casinos Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed after the Closing Date an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities Notes for Exchange Securities Notes, use its best efforts to have such Registration Statement declared effective by the SEC, and to have such Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable its best efforts to have the Exchange Offer completed consummated not later than 210 180 days after the Closing Date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities Notes validly tendered 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 Registrable Security Note not tendered will remain outstanding and continue to accrue interestinterest in accordance with the terms of the Notes, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security Note exchanged pursuant to the Exchange Offer will be required to surrender such Registrable SecurityNote, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities Notes delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Notes exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities Notes 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 Notes or portions thereof so accepted for exchange by the Company and the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security Note equal in principal amount to the principal amount of the Registrable Securities Notes surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable its best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents, if requested by the Placement Agents, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities Notes in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 days from the Closing Date consummated on or prior to Marcx 00, 0000, xx (iiixxx) the Exchange Offer has been completed and in xx the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.Placement
Appears in 1 contract
Samples: Registration Rights Agreement (Felcor Hotel Asset Co LLC)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors Guarantor shall use their commercially reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors Guarantor to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors Guarantor shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors Guarantor shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors Guarantor shall:
(i) 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 the Guarantors; and
(iii) Guarantor and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors Guarantor shall use their commercially reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SECSEC or any order of any court of competent jurisdiction in the United States or Canada. The Company and the Guarantors Guarantor shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Each Holder participating in the Exchange Offer shall be required to represent to the Company and the Guarantor that at the time of the consummation of the Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder has no arrangement or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the 1933 Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the 1933 Act, of the Company or the Guarantor, (iv) such Holder is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities within the meaning of the 1933 Act, (v) if such Holder is a broker-dealer, that it will receive Exchange Securities in exchange for Securities that were acquired for its own account as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus meeting the requirements of the 1933 Act in connection with any resale of such Exchange Securities and (vi) if such Holder is a broker-dealer, it did not purchase the Securities being tendered in the Exchange Offer directly from the Company for resale pursuant to Rule 144A under the 1933 Act or any other available exemption from registration under the 1933 Act.
(b) In the event that (i) the Company and the Guarantors Guarantor determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date April 16, 2005 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agents a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agents in connection with any offering or sale of Registrable Securities, the Company and the Guarantors Guarantor shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, determination date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may beCompany, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors Guarantor are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors Guarantor shall use their commercially reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers Placement Agents after completion of the Exchange Offer. The Company and the Guarantors Guarantor agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors Guarantor further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors Guarantor for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors Guarantor agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors Guarantor shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; providedPROVIDED, howeverHOWEVER, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any United States federal or state, Canadian federal, provincial or territorial, or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event the Exchange Offer is not completed consummated and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing DateApril 16, 2005, the interest rate on the Securities will be increased by 0.250.5% per annum until the Exchange Offer is completed consummated or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Company and the Guarantors Guarantor acknowledge that any failure by the Company or any the Guarantor to comply with its respective obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' Guarantor's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Stone Container Finance CO of Canada II)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially its reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially its reasonable best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially its reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable order or interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Each Holder who participates in the Exchange Offer will be required to represent that any Exchange Securities received by it will be acquired in the ordinary course of its business, 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 Securities, and that such Holder is not an affiliate of the Company within the meaning of Rule 405 promulgated under the 1933 Act or if it is such an affiliate, that it will comply with the registration and prospectus delivery requirements of the 1933 Act, to the extent applicable.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the 225th day after the Closing Date or (iii) any Holder of Registrable Securities shall provide the Company prior to the 20th day following the consummation of the Exchange Offer has been completed and in the an opinion of counsel for that (A) such Holder is prohibited by applicable law or applicable interpretation of the Initial Purchasers Staff of the SEC from participating in the Exchange Offer, or (B) such Holder may not resell the Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement must be filed and a Prospectus must be delivered is not appropriate or available for such resales by the Initial Purchasers in connection with any offering or sale of Registrable Securitiessuch Holder, the Company and the Guarantors shall use their commercially its reasonable best efforts to cause to be filed as soon as practicable after such determination, determination date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, and that it will not be possible to measure damages for such injuries precisely and that, in precisely. In the event of any such failurethe Exchange Offer is not consummated and, if required pursuant to Section (b) (i) or (b) (ii) hereof, the Initial Purchasers Shelf Registration Statement is not declared effective on or any Holder may obtain such relief as may prior to the 225th day after the Closing Date, the interest rate on the Securities will be required to specifically enforce increased by .5% per annum until the Company's and date the Guarantors' obligations under Section 2(a) and Section 2(b) hereofExchange Offer is consummated or the Shelf Registration Statement is declared effective by the SEC.
Appears in 1 contract
Registration Under the 1933 Act. (ai) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors Exchange Offer on or prior to the Holders to exchange all of date that is 90 days after the Registrable Securities for Exchange Securities and Closing Date, to have such Registration Statement declared effective by the SEC on or prior to the date that is 180 days after the Closing Date and remain effective until the closing of the Exchange Offer. The Company Offer and the Guarantors shall commence to consummate the Exchange Offer promptly after on or prior to the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable efforts to have the Exchange Offer completed not later than date that is 210 days after the Closing Date. For purposes hereof, "consummate" shall mean that the Exchange Offer Registration Statement shall have been declared effective, subject to Section 2(b), the period of the Exchange Offer provided in accordance with clause 2(a)(i)(B) below shall have expired and all Registrable Securities of each series validly tendered in connection with such Exchange Offer shall have been exchanged for Exchange Securities of the corresponding series. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Exchange Offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(iA) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(iiB) the dates of acceptance for exchange (which shall be a period of at least 20 business 30 days from the date such notice is mailed) (the each such date being an "Exchange DatesDate");
(iiiC) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement, other than Securities that represent an unsold allotment for the original offering thereof;
(ivD) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date (the "Offer Termination Date"); and
(vE) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Offer Termination Date, by sending to the institution and at the address specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities of each series delivered for exchange and a statement that such Holder is withdrawing his election to have such Registrable Securities exchanged. .
(ii) As soon as practicable after the last Exchange Offer Termination Date, the Company and the Guarantors shall:
(iA) accept for exchange Registrable Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer; and
(iiB) 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 the Guarantors; and
(iii) issue, and use its best efforts to cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security of each series equal in aggregate principal amount to the aggregate principal amount of the Registrable Securities surrendered by of the corresponding series so accepted for exchange from such Holder. .
(iii) The Company and the Guarantors shall use their commercially reasonable its best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. .
(iv) The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom may require each Holder participating in the Exchange Offer is made, and to represent to the Initial Purchasers shall have Company that at the right, subject to applicable law, to contact time of the consummation of the Exchange Offer (A) any Exchange Securities received by such Holders and otherwise facilitate the tender of Registrable Securities Holder in the Exchange OfferOffer will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any Person to participate in the distribution of the Exchange Securities within the meaning of the 1933 Act or resale of the Exchange Securities in violation of the 1933 Act, (C) if such Holder is not a broker-dealer, that it is not engaged in and does not intend to engage in, the distribution of the Exchange Securities, (D) if such Holder is a broker-dealer that it will receive Exchange Securities for its own account in exchange for Securities 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 such Exchange Securities, and (E) if such Holder is an affiliate of the Company, that it will comply with the registration and prospectus delivery requirements of the 1933 Act applicable to it.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the Exchange Offer Termination Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by not consummated within 210 days from after the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Purchasers, a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable SecuritiesSecurities because such Registrable Securities represent an unsold allotment for the original offering thereof, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders resale of all of the such Registrable Securities and to have such Shelf Registration Statement declared effective by the SECSEC within 210 days after the Closing Date. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially reasonable its best efforts to keep the Shelf Registration Statement continuously effective until two years from the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities effective date thereof or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration StatementStatement (the "Effectiveness Period"). The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicablepracticable thereafter. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts discounts, if any, and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the a Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become be effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. .
(e) Notwithstanding anything to the contrary contained herein, if (i) the Board of Directors of the Company determines in good faith that it is in the best interests of the Company not to disclose the existence of or facts surrounding any proposed or pending material corporate transaction involving the Company or its subsidiaries and (ii) the Company notifies the Holders within two Business Days after the Board of Directors makes such determination, the Company may allow the Shelf Registration Statement to fail to be effective and usable as a result of such nondisclosure for up to 120 days during the Effectiveness Period, but in no event for any period in excess of 30 consecutive days; provided, however, that the Effectiveness Period shall be extended by the number of days during which such registration statement was not effective or usable pursuant to the foregoing provisions.
(f) In the event that (i) the Exchange Offer Registration Statement relating to the Exchange Offer is not completed and filed with the SEC on or prior to the date that is 90 days after the Closing Date (unless a Shelf Registration Statement is filed on or prior to such date), (ii) the Exchange Offer Registration Statement is not declared effective on or prior to 210 the date that is 180 days from after the Closing DateDate (unless a Shelf Registration Statement has been filed on or prior to such date), the interest rate on the Securities will be increased by 0.25% per annum until (iii) the Exchange Offer is completed not consummated on or prior to the date that is 210 days after the Closing Date (unless a Shelf Registration Statement has been filed on or prior to such date), (iv) a Shelf Registration Statement with respect to resale of the Securities is not declared effective on or prior to the date that is 210 days after the Closing Date (unless the Exchange Offer has been consummated by that date) or (v) the Shelf Registration Statement ceases to be effective at any time during the Effectiveness Period (unless the Exchange Offer has been consummated by that date or unless such cessation of effectiveness is declared effective permitted pursuant to Section 2(e)) (each such event referred to in clauses (i) through (v), a "Registration Default"), then the Company will pay additional interest (in addition to the interest otherwise due on the Securities) to each Holder of Securities commencing upon the occurrence of each such Registration Default in an amount equal to 0.50% per annum, provided that such additional interest shall not exceed 0.50% per annum in the aggregate and provided further that any Holder that does not deliver the information that the Company may request for inclusion in the Shelf Registration Statement pursuant to Section 3(c) hereof upon such a request by the SECCompany shall not be entitled to any such additional interest for any day after the date that is 5 Business Days after the date of request. Such additional interest will cease accruing on such Securities with respect to any Registration Default when such Registration Default has been cured.
(eg) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages damage for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Security Capital Group Inc/)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SECStaff, the Company Issuers and the Guarantors shall use their commercially reasonable efforts to cause to be filed (i) file an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors Issuers to the Holders to exchange all of the Registrable Securities for Exchange Securities and (ii) use their reasonable best efforts to have the Exchange Offer Registration Statement declared effective by the SEC as promptly as practicable after such Registration Statement remain effective until the closing of the Exchange Offerhas been filed. The Company and the Guarantors Issuers shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable efforts to have the Exchange Offer completed not later than 210 days after the Closing DateSEC. The Company and the Guarantors Issuers shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; provided, however, that, if any of the Registrable Securities are in book-entry form, such Prospectus and accompanying documents shall also specify how the surrender is to be effected in accordance with applicable book-entry procedures; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors Issuers shall:
(i) 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 Issuers and the Guarantors; and
(iii) Guarantors and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder; provided that if any of the Registrable Securities are in book-entry form, the Issuers shall, in co-operation with the Trustee, effect the exchange of Registrable Securities in accordance with applicable book-entry procedures. The Company Issuers and the Guarantors shall use their commercially reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SECStaff. The Company and Issuers shall, if requested by the Guarantors shall Initial Purchasers, use their reasonable efforts to inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company Issuers and the Guarantors determine that are not permitted to consummate the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not permitted by applicable law or any applicable interpretation of the Staff, (ii) for any other reason completed by 210 days from reason, the Closing Date Exchange Offer is not consummated on or before June 28, 2013, or (iii) any Beneficial Owner of Registrable Securities notifies the Issuers that (A) it is prohibited by law or SEC policy from participating in the Exchange Offer, (B) it may not resell the Exchange Securities acquired by it in the Exchange Offer has been completed to the public without delivering a prospectus and the prospectus contained in the opinion of counsel for the Initial Purchasers a Exchange Offer Registration Statement must be filed is not appropriate or available for such resales; or (C) it is a broker-dealer and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, owns Securities acquired directly from the Company or an affiliate of the Company, then the Issuers and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable file after such determination, determination date or notice of such opinion of counsel is given to the Company and the GuarantorsIssuers, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such use their reasonable best efforts to cause the Shelf Registration Statement to be declared effective by the SECSEC reasonably promptly but in any event on or prior to 60 days after the obligation to file such shelf registration statement arises. In the event the Company and the Guarantors Issuers are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iiiiii)(B) of the preceding sentence, the Company Issuers and the Guarantors shall use their commercially reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company Issuers and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration earlier of (i) two years from the period referred to in Rule 144(kClosing Date and (ii) with respect to the date on which all Registrable Securities or such shorter period that will terminate when all registered thereunder are disposed of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statementin accordance therewith. The Company Issuers and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company Issuers and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors Issuers agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors Issuers shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event (1) the Issuers and the Guarantors fail to consummate the Exchange Offer is not completed and on or before June 28, 2013; or (2) the Shelf Registration Statement or the Exchange Offer Registration Statement is not declared effective on but thereafter ceases to be effective or prior usable in connection with resales or exchanges of Registrable Securities during the periods specified in this Agreement (each such event referred to 210 days from in clauses (1) and (2) above, a “Registration Default”), then with respect to the Closing Datefirst 90-day period immediately following the occurrence of the first Registration Default, the interest rate on the Securities will be increased by 0.25% per annum on the principal amount of Securities held by such Holder. The amount of additional interest will increase by an additional 0.25% per annum on the principal amount of Securities with respect to each 90-day period until all Registration Defaults have been cured, up to maximum amount of additional interest for all Registration Defaults of 1.0% per annum. All accrued additional interest will be paid by the Exchange Offer is completed Issuers or the Shelf Guarantors on each interest payment date to the Holder of a global note by wire transfer of immediately available funds or by federal funds check and to Holders of certificated notes by wire transfer to the accounts specified by them or by mailing checks to their registered addresses if no such accounts have been specified. Following the cure of all Registration Statement is declared effective by Defaults, the SECaccrual of additional interest will cease.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company Issuers and the Guarantors acknowledge that any failure by the Company any Issuer or any Guarantor to comply with its their respective obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's obligations of the Issuers and the Guarantors' obligations Guarantors under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SECSEC and subject to the condition set forth in Section 2(b), the Company and the Guarantors shall use their commercially its reasonable best efforts to cause to be filed an Exchange Offer Registration Statement not later than the 365th day following the Issuance Date (or, if such day is not a business day, the first business day thereafter) covering the offer by the Company and the Guarantors to the Holders who are not prohibited by any law or policy of the SEC, or applicable interpretation of the Staff of the SEC, from participating in the Exchange Offer to exchange all of the Registrable Securities Certificates for Exchange Securities Certificates, to cause the Exchange Offer Registration Statement to be declared or otherwise become effective and to have such the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC SEC. The Company shall keep the exchange offer open for not less than 20 business days after the date the notice referred to below is mailed to the Holders, and the Exchange Deadline shall not be extended because of this requirement. The Company shall use their commercially its reasonable best efforts to have the Exchange Offer completed consummated not later than 210 days the 455th day after the Closing DateIssuance Date (or, if the last day of such 455-day period is not a business day, the first business day thereafter) (the “Exchange Deadline”). The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder statingHolder, through DTC or otherwise, stating in such Prospectus or accompanying documents, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities Certificates validly tendered and not 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) (such dates, the "“Exchange Dates"”);
(iii) that any Registrable Security Certificate not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security Certificate exchanged pursuant to the Exchange Offer will be required to surrender such Registrable SecurityCertificate, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities Certificates delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Registrable Certificates exchanged. As soon as practicable after the last Exchange DateDate for the Exchange Offer, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities Certificates 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 Certificates or portions thereof so accepted for exchange by the Company and, subject to Section 4.01(f) and Section 4.04 of the Guarantors; and
(iii) issueTrust Supplement, and cause the Trustee to promptly issue, authenticate and mail to each Holder, an Exchange Security Certificate equal in principal amount to the principal amount of the Registrable Securities Certificates surrendered by such Holder. The Company and the Guarantors shall use their commercially its reasonable best efforts to complete the 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 the Exchange Offer. The Except as set forth in Section 2(b), the Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses known to the Company (including through DTC) of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities Certificates in the Exchange Offer. If the Company effects the Exchange Offer, the Company shall be entitled to close the Exchange Offer twenty (20) business days after such commencement (provided that the Company has accepted all the Certificates theretofore validly tendered and not withdrawn in accordance with the terms of the Exchange Offer). Each Holder participating in the Exchange Offer shall be required to represent to the Company in writing that at the time of the consummation of the Exchange Offer (i) any Exchange Certificates received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any Person to participate in the distribution (within the meaning of the 1930 Xxx) xf the Certificates or the Exchange Certificates, (iii) such Holder is not an affiliate of the Company within the meaning of Rule 405 under the 1933 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 Exchange Certificates and (v) if such Holder is a broker dealer, that it will receive Exchange Certificates for its own account in exchange for Certificates that were acquired as a result of market making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with the resale of such Exchange Certificates.
(b) In the event that (i) the Company and the Guarantors determine determines (1) that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after by the Exchange Date Deadline because it would violate applicable law or the applicable interpretations of the Staff of the SEC, SEC or (ii2) the Exchange Offer is not for any other reason completed by 210 days from the Closing Date or (iii) issuance of the Exchange Offer has been completed and in Certificates would cause the opinion Trust to be required to become registered as an investment company under the United States Investment Company Act of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities1940, as amended, then the Company and shall, in lieu of effecting the Guarantors shall use their commercially reasonable efforts registration of Exchange Certificates pursuant to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant and at no cost to Section 2(athe Holders, (i) as promptly as practicable, file with respect to all the SEC a shelf registration statement covering resales of the Registrable Securities and Certificates (a “Shelf Registration Statement Statement”), (which may be a combined Registration Statement with the Exchange Offer Registration Statementii) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially its reasonable best efforts to keep cause the Shelf Registration Statement continuously to be declared or otherwise become effective until under the expiration Securities Act by the Exchange Deadline and (iii) use its reasonable best efforts to keep effective the Shelf Registration Statement for a period of the period referred to in Rule 144(k) with respect to the Registrable Securities one year after its effective date (or for such shorter period that will terminate as shall end when all of the Registrable Securities Certificates covered by the Shelf Registration shelf registration Statement have been sold pursuant thereto or may be freely sold pursuant to Rule 144 under the Shelf Registration StatementSecurities Act). The Company and the Guarantors further agree agrees to supplement or amend any the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and for the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially its reasonable best efforts to cause any such amendment to become effective and such the Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities Certificates copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the any registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities Certificates pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SECSEC or otherwise becomes effective under SEC rules. As provided for in the Pass Through Trust Agreement, if neither the Exchange Offer is consummated nor the Shelf Registration Statement is declared effective or otherwise becomes effective under SEC rules on or prior to the Exchange Deadline, the interest rate on the Registrable Certificates and the related Equipment Notes held by the Trust will be increased by 0.50% per annum effective as of the first day after the Exchange Deadline but only until the Exchange Offer is consummated or the Shelf Registration Statement is declared or otherwise becomes effective under SEC rules. If the Shelf Registration Statement ceases to be available for more than 45 days during any three-month period or 120 days within any twelve- month period, during the period that it is required to be available pursuant to Section 2(b), the interest rate per annum borne by the Registrable Certificates and the related Equipment Notes held by the Trust shall be increased by 0.50% from the 46th day or 121st day, as applicable, until such time as the Shelf Registration Statement again becomes available; providedprovided that for the purpose of this sentence, however, that, if, after it has been declared effective, the Shelf Registration Statement shall be deemed to have ceased to be available during:
(A) any period in which the offering of Registrable Securities Certificates pursuant to a the Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court;
(B) the occurrence of any event or the existence of any fact, such Registration Statement will be deemed not to have become effective during the period as a result of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and which the Shelf Registration Statement is shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not declared effective on misleading, with respect to which notice has been given by the Company pursuant to Section 3(i); or
(C) the occurrence or prior existence of any pending corporate development that, in the discretion of the Company, makes it appropriate to 210 days from suspend the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or availability of the Shelf Registration Statement is declared effective with respect to which notice has been given by the SECCompany pursuant to Section 3(e).
(e) Without limiting The maximum possible increase in the remedies available to interest rate per annum on the Initial Purchasers Registrable Certificates and the Holders, the Company and the Guarantors acknowledge that any failure related Equipment Notes held by the Company or any Guarantor Trust pursuant to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b2(d) hereof, at any time, shall be 0.50%.
Appears in 1 contract
Samples: Registration Rights Agreement (Latam Airlines Group S.A.)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SECStaff, the Company Issuers and the Guarantors shall use their commercially reasonable efforts to cause to be filed (i) file an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors Issuers to the Holders to exchange all of the Registrable Securities for Exchange Securities and (ii) use their reasonable best efforts to have the Exchange Offer Registration Statement declared effective by the SEC as promptly as practicable after such Registration Statement remain effective until the closing of the Exchange Offerhas been filed. The Company and the Guarantors Issuers shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable efforts to have the Exchange Offer completed not later than 210 days after the Closing DateSEC. The Company and the Guarantors Issuers shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; provided, however, that, if any of the Registrable Securities are in book-entry form, such Prospectus and accompanying documents shall also specify how the surrender is to be effected in accordance with applicable book-entry procedures; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors Issuers shall:
(i) 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 Issuers and the Guarantors; and
(iii) Guarantors and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder; provided that if any of the Registrable Securities are in book-entry form, the Issuers shall, in co-operation with the Trustee, effect the exchange of Registrable Securities in accordance with applicable book-entry procedures. The Company Issuers and the Guarantors shall use their commercially reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SECStaff. The Company and Issuers shall, if requested by the Guarantors shall Initial Purchasers, use their reasonable efforts to inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company Issuers and the Guarantors determine that are not permitted to consummate the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not permitted by applicable law or any applicable interpretation of the Staff, (ii) for any other reason completed by 210 days from reason, the Closing Date Exchange Offer is not consummated on or before January 23, 2016, or (iii) any Beneficial Owner of Registrable Securities notifies the Issuers that (A) it is prohibited by law or SEC policy from participating in the Exchange Offer, (B) it may not resell the Exchange Securities acquired by it in the Exchange Offer has been completed to the public without delivering a prospectus and the prospectus contained in the opinion of counsel for the Initial Purchasers a Exchange Offer Registration Statement must be filed is not appropriate or available for such resales; or (C) it is a broker-dealer and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, owns Securities acquired directly from the Company or an affiliate of the Company, then the Issuers and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable file after such determination, determination date or notice of such opinion of counsel is given to the Company and the GuarantorsIssuers, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such use their reasonable best efforts to cause the Shelf Registration Statement to be declared effective by the SECSEC as promptly as possible after the obligation to file such shelf registration statement arises. In the event the Company and the Guarantors Issuers are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iiiiii)(B) of the preceding sentence, the Company Issuers and the Guarantors shall use their commercially reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company Issuers and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration earlier of (i) two years from the period referred to in Rule 144(kClosing Date and (ii) with respect to the date on which all Registrable Securities or such shorter period that will terminate when all registered thereunder are disposed of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statementin accordance therewith. The Company Issuers and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company Issuers and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors Issuers agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors Issuers shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event (1) the Issuers and the Guarantors fail to consummate the Exchange Offer is not completed and on or before January 23, 2016; or (2) the Shelf Registration Statement or the Exchange Offer Registration Statement is not declared effective on but thereafter ceases to be effective or prior usable in connection with resales or exchanges of Registrable Securities during the periods specified in this Agreement (each such event referred to 210 days from in clauses (1) and (2) above, a “Registration Default”), then with respect to the Closing Datefirst 90-day period immediately following the occurrence of the first Registration Default, the interest rate on the Securities will be increased by 0.25% per annum on the principal amount of Securities held by such Holder. The amount of additional interest will increase by an additional 0.25% per annum on the principal amount of Securities with respect to each 90-day period until all Registration Defaults have been cured, up to maximum amount of additional interest for all Registration Defaults of 1.0% per annum. All accrued additional interest will be paid by the Exchange Offer is completed Issuers or the Shelf Guarantors on each interest payment date to the Holder of a global note by wire transfer of immediately available funds or by federal funds check and to Holders of certificated notes by wire transfer to the accounts specified by them or by mailing checks to their registered addresses if no such accounts have been specified. Following the cure of all Registration Statement is declared effective by Defaults, the SECaccrual of additional interest will cease.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company Issuers and the Guarantors acknowledge that any failure by the Company any Issuer or any Guarantor to comply with its their respective obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's obligations of the Issuers and the Guarantors' obligations Guarantors under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Zayo Group Holdings, Inc.)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company Operating Partnership and the Guarantors shall use their commercially reasonable efforts to cause to be filed after the Closing Date an Exchange Offer Registration Statement covering the offer by the Company Operating Partnership and the Guarantors to the Holders to exchange all of the Registrable Securities Notes for Exchange Securities Notes, use their commercially reasonable efforts to have such Registration Statement declared effective by the SEC, and to have such Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer. The Company Operating Partnership and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable efforts to have the Exchange Offer completed consummated not later than 210 180 days after the Closing Date. The Company Operating Partnership and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities Notes validly tendered 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 Registrable Security Note not tendered will remain outstanding and continue to accrue interestinterest in accordance with the terms of the Notes, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security Note exchanged pursuant to the Exchange Offer will be required to surrender such Registrable SecurityNote, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities Notes delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Notes exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors Operating Partnership shall:
(i) accept for exchange Registrable Securities Notes 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 Notes or portions thereof so accepted for exchange by the Company Operating Partnership and the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security Note equal in principal amount to the principal amount of the Registrable Securities Notes surrendered by such Holder. The Company Operating Partnership and the Guarantors shall use their commercially reasonable efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors Operating Partnership shall inform the Initial Purchasers Purchasers, if requested by the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities Notes in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine Operating Partnership determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 consummated on or prior to 180 days from after the Closing Date Date, or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable SecuritiesNotes, the Company Operating Partnership and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may beOperating Partnership, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Notes and use their commercially reasonable efforts to have such Shelf Registration Statement declared effective by the SEC. In the event the Company Operating Partnership and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company Operating Partnership and the Guarantors shall file and use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities Notes and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities Notes held by the Initial Purchasers after completion of the Exchange Offer. The Company Operating Partnership and the Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the expiration of date that is one year after the period referred to in Rule 144(k) with respect to the Registrable Securities first date on which such Shelf Registration Statement becomes effective or such shorter period that will terminate earlier date when all of the Registrable Securities Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company Operating Partnership and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company Operating Partnership and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their its commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree Operating Partnership agrees to furnish to the Holders of Registrable Securities Notes copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company Operating Partnership and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities Notes pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities Notes pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that the Exchange Offer is not completed consummated, and if a Shelf Registration Statement is required hereby, the Shelf Registration Statement is not declared effective on or prior to 210 180 days from after the Closing Date, the interest rate on the Securities Notes (and the Exchange Notes) will be increased increase by 0.250.5% per annum until the Exchange Offer is completed consummated or the a Shelf Registration Statement is declared effective by the SECeffective.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company Operating Partnership and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its their respective obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's respective obligations of the Operating Partnership and the Guarantors' obligations Guarantors under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (FelCor Lodging Trust Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company Issuer and the Guarantors shall use their commercially reasonable efforts file, with respect to cause to be filed any Securities that on the Registration Trigger Date are Registrable Securities, an Exchange Offer Registration Statement covering the offer by the Company Issuer and the Guarantors Guarantors, to the Holders Holders, to exchange all of the Registrable Securities for Exchange Securities in a like aggregate principal amount and to use their commercially reasonable efforts to have such Registration Statement remain effective until the closing of the Exchange Offer; provided, however, that if requested pursuant to Section 4 hereof, the Issuer and Guarantors will use their commercially reasonable efforts to have such Registration Statement remain effective for 90 days after the date on which such Registration Statement is declared effective for use by one or more Participating Broker-Dealers. The Company Issuer and the Guarantors shall commence the Exchange Offer as promptly as practicable after the Exchange Offer Registration Statement has been declared effective by the SEC SEC, and the Issuer shall use their its commercially reasonable efforts to have the Exchange Offer completed consummated not later than 210 45 days after the Closing Datedate on which the Exchange Offer Registration Statement is declared effective (such 45-day period being the “Exchange Period”). The Company Issuer and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates date of acceptance for exchange (which shall be a period of date at least 20 business days (or longer if required by applicable law) from the date such notice is mailed) (the "“Exchange Dates"Date”);
(iii) that any Registrable Security not tendered by a Holder who was eligible to participate in the Exchange Offer will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business business, New York City time, on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company Issuer and the Guarantors shall:
(ivi) accept for exchange Registrable Securities or portions thereof validly tendered and not validly properly withdrawn pursuant to the Exchange Offer; and
(iivii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company Issuer and the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder; provided, however, that, in the case of any Registrable Securities held in global form by a depositary, authentication and delivery to such depositary of one or more Exchange Securities in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuer, in writing (which may be contained in the applicable letter of transmittal), that: (1) 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 a Holder of Registrable Securities, (2) 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 of the Exchange Securities in violation of the provisions of the 1933 Act, (3) the Holder is not an Affiliate of the Issuer or if it is an Affiliate, it will comply with the registration and prospectus delivery requirements of the 1933 Act to the extent applicable, (4) if such Holder is not a Participating Broker-Dealer, it has not engaged in, and does not intend to engage in, the distribution of Exchange Securities, (5) if such Holder is a Participating Broker-Dealer, such Holder acquired the Registrable Securities as a result of market-making activities or other trading activities, it will deliver a prospectus in connection with any resale of the Exchange Securities and it will comply with the applicable provisions of the 1933 Act with respect to resale of any Exchange Securities, and (6) such Holder has full power and authority to transfer the Registrable Securities in exchange for the Exchange Securities. The Company Issuer and the Guarantors shall use their commercially reasonable efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act Act, and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than (1) that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company , (2) that no action or proceeding shall have been instituted or threatened in any court or by any governmental agency with respect to the Exchange Offer and no material adverse development shall have occurred with respect to the Issuer or any Guarantor, (3) that all governmental approvals shall have been obtained that the Issuer and the Guarantors shall inform deem necessary for the Initial Purchasers consummation of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer, (4) that the conditions precedent to the Issuer’s and the Guarantors’ obligations under this Agreement shall have been fulfilled, and (5) such other conditions as shall be deemed necessary or appropriate by the Issuer and the Guarantors in their reasonable judgment.
(b) In the event that that
(i) the Company and the Guarantors determine Issuer is required to consummate an Exchange Offer pursuant to Section 2(a) hereof but determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, ,
(ii) the Issuer is required to consummate an Exchange Offer pursuant to Section 2(a) hereof but the Exchange Offer Registration Statement is not for any other reason completed declared effective by 210 days from the Closing Date or Registration Trigger Date,
(iii) any Holder of Registrable Securities notifies the Issuer after the commencement of the Exchange Offer has been completed that due to a change in applicable law or SEC policy it is not entitled to participate in the Exchange Offer,
(iv) any Holder that participates in the Exchange Offer (and tenders its Registrable Securities prior to the expiration thereof) 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 or as a Participating Broker-Dealer), or
(v) the Issuer receives a written request (a “Shelf Request”) from any Initial Purchaser representing that it holds Registrable Securities that, in the opinion of counsel for the Initial Purchasers a Purchasers, are not Freely Tradable on the Registration Statement must be filed and a Prospectus must be delivered by Trigger Date, then the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company Issuer and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon promptly as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may be, file a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities by the Holders thereof and use their commercially reasonable efforts to have such Shelf Registration Statement declared become effective by the SEC90th day following (A) the date of determination, in the case of (i) above, (B) the Registration Trigger Date, in the case of (ii) above, (C) the date of notification, in the case of (iii) above, (D) the Exchange Date, in the case of (iv) above, and (E) the date the Company receives the Shelf Request, in the case of (v) above (each of such dates, as applicable, the “Shelf Registration Effectiveness Date”). In the event the Company Issuer and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause clauses (iii) or (v) of the preceding sentence, the Company Issuer and the Guarantors shall file and use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by such other Holders or the Initial Purchasers Purchasers, as applicable, after completion of the Exchange Offer. The Company Issuer and the Guarantors agree agree, except as set forth herein, to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the expiration earlier of (i) two years after the period referred to in Rule 144(kClosing Date or (ii) with respect to the Registrable Securities or such shorter period that will terminate when date on which all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration StatementStatement or otherwise no longer constitute Registrable Securities (the “Shelf Effectiveness Period”). The Company Issuer and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations regulations, or instructions applicable to the registration form used by the Company and the Guarantors Issuer for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities listed in the Shelf Registration Statement and the related Prospectus with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company Issuer and the Guarantors agree to furnish to the Holders of Registrable Securities listed in the Shelf Registration Statement and the related Prospectus, upon request, copies of any such supplement or amendment promptly after its being used or filed with the SEC. Notwithstanding the foregoing, the Issuer and the Guarantors shall not be required to file more than one post-effective amendment to the Shelf Registration Statement in any fiscal quarter, such timing to be determined in the reasonable discretion of the Issuer, to add one or more Holders to the “Selling Securityholders” table of the Shelf Registration Statement or to update any information in such table. Notwithstanding anything to the contrary contained herein, if any exchange offer is consummated after the Exchange Date, any obligations of the Issuer and the Guarantors arising as a result of clause (ii) above shall terminate and such exchange offer shall be deemed an Exchange Offer pursuant to Section 2(a).
(c) The Company Issuer and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition registration of such Holder's ’s Registrable Securities pursuant to the Exchange Offer Registration Statement or the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SECSEC or, in the case of a Shelf Registration Statement, is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become be effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the event Indenture, the annual interest rate on the Registrable Securities will be increased (the “Additional Interest”) under the following conditions: subject to Sections 2(f) and 2(g), if (i) an Exchange Offer Registration Statement is required to be filed pursuant to Section 2(a) hereof and (A) the Exchange Offer is Registration Statement has not completed been declared effective by the SEC on or prior to the Registration Trigger Date (and the Shelf Registration Statement has not become effective), or (B) the Exchange Offer Registration Statement has been declared effective by the SEC but the Issuer has not exchanged Exchange Securities for all Registrable Securities validly tendered in accordance with the terms of the Exchange Offer on or prior to the end of the Exchange Period or (ii) if a Shelf Registration Statement is required pursuant to Section 2(b) hereof and such Shelf Registration Statement (A) does not declared become effective on or prior to 210 days from the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the HoldersEffectiveness Date, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.or
Appears in 1 contract
Samples: Registration Rights Agreement (Qwest Communications International Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable its best efforts (i) to cause to be filed after the Closing Date an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange (A) all of the Class A Registrable Securities Certificates for Class A Exchange Securities and Certificates, (B) all of the Class B Registrable Certificates for Class B Exchange Certificates, (C) all of the Class C Registrable Certificates for Class C Exchange Certificates (ii) to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable its best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and shall, or shall cause the Guarantors shall Trustees to, commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:: 11 10
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities Certificates validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be each business day during a period of at least 20 business 30 days from the date such notice is mailed) (the "Exchange Dates");
(iii) that any Registrable Security Certificate not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security Certificate exchanged pursuant to the Exchange Offer will be required to surrender such Registrable SecurityCertificate, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities Certificates delivered for exchange exchange, and a statement that such Holder is withdrawing his election to have such Securities Certificates exchanged. As soon as practicable after the last Exchange Date, the Company and shall or shall cause the Guarantors shallTrustees to:
(i) accept for exchange Registrable Securities Certificates or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer; and;
(ii) deliver, or cause to be delivered, to the Class A Trustee for cancellation all Class A Registrable Securities Certificates or portions thereof so accepted for exchange by the Company Company, and the Guarantors; and
(iii) issue, and cause the Class A Trustee to promptly authenticate and mail to each Class A Holder, an Class A Exchange Security Certificates equal in principal amount to the principal amount of the Class A Registrable Securities Certificates surrendered by such Class A Holder;
(iii) deliver, or cause to be delivered, to the Class B Trustee for cancellation all Class B Registrable Certificates or portions thereof so accepted for exchange by the Company, and issue, and cause the Class B Trustee to promptly 12 11 authenticate and mail to each Class B Holder, Class B Exchange Certificates equal in principal amount to the principal amount of the Class B Registrable Certificates surrendered by such Class B Holder; and
(iv) deliver, or cause to be delivered, to the Class C Trustee for cancellation all Class C Registrable Certificates or portions thereof so accepted for exchange by the Company, and issue, and cause the Class C Trustee to promptly authenticate and mail to each Class C Holder, Class C Exchange Certificates equal in principal amount to the principal amount of the Class C Registrable Certificates surrendered by such Class C Holder. The Company and the Guarantors shall use their commercially reasonable its best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws laws, rules and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities Certificates in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 days from the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities Certificates copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities Certificates pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities Notes for Exchange Securities Notes and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable its best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities Notes validly tendered 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 Registrable Security Note not tendered will remain outstanding and continue to accrete in value until July 15, 2002 and thereafter will accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security Note exchanged pursuant to the Exchange Offer will be required to surrender such Registrable SecurityNote, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 at maturity of Registrable Securities Notes delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities 13% Notes exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities Notes 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 Notes or portions thereof so accepted for exchange by the Company and the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security Note equal in principal amount at maturity to the principal amount at maturity of the Registrable Securities Notes surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable its best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers MS&Co. of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers MS&Co. shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities Notes in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date October 15, 2001 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers MS&Co. a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers MS&Co. in connection with any offering or sale of Registrable SecuritiesNotes, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Notes and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable its best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities Notes and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities Notes held by the Initial Purchasers MS&Co. after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially reasonable its best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities Notes or such shorter period that will terminate when all of the Registrable Securities Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities Notes copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially its reasonable best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the date or 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 relevant Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company and the Guarantors; and
(iii) issue, and cause the relevant Trustee to promptly authenticate and mail to each Holder, an Exchange Security of the same series equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable its best efforts to complete the Exchange Offer as and to the extent provided above and shall comply in all material respects with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Each Holder participating in the Exchange Offer shall be required to represent to the Company at or prior to the consummation of the Exchange Offer that (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the 1933 Act, and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the 1933 Act, of the Company. If such Holder is a broker-dealer, it will be required to represent that the Securities were acquired as a result of market-making activities or other trading activities and that it will deliver a prospectus in connection with any resale of such Exchange Securities. Each such Holder, whether or not it is a broker-dealer, shall also represent that it is not acting on behalf of any person that could not truthfully make any of the foregoing representations contained in this paragraph. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply (to the extent applicable) solely with respect to Registrable Securities held by the Placement Agents or any Participating Broker-Dealers (as defined in Section 4(a)) as provided in (and subject to) Section 2(b)(iii), and the Company shall have no further obligation to register Securities (other than such Registrable Securities of the Placement Agents and Participating Broker-Dealers) pursuant to Section 2(b) of this Agreement.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date August 19, 1999 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agents (notice of which shall be given to the Company within 30 days of such completion) a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agents in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the applicable Holders of all of the their Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable its best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers Placement Agents after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially reasonable its best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) under the 1933 Act with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration StatementStatement or are no longer restricted securities (as defined in Rule 144 under the 1993 Act, or any successor rule thereof). The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities covered by the Shelf Registration Statement copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; providedPROVIDED, howeverHOWEVER, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become be effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indentures, in the event the Exchange Offer is not completed consummated and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing DateAugust 19, 1999, the annual interest rate borne by the Securities shall be increased by 0.5% per annum on the Securities will from August 19, 1999 and be increased by 0.25% per annum payable in cash semi-annually, commencing February 15, 2000, until the Exchange Offer is completed consummated or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Notes Registration Rights Agreement (Carrier1 International S A)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable axxxxxxxxe law or applicable interpretation of the Staff staff of the SEC, the Company and the Guarantors shall use their commercially reasonable efforts to (1) cause to be filed an Exchange Offer Registration Statement within 90 days following the Closing Date covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for an equal aggregate principal amount of Exchange Securities and (2) use its reasonable best efforts to cause such Exchange Offer Registration Statement to become effective within 210 days following the Closing Date. The Company shall use its reasonable best efforts to have such the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially its reasonable best efforts to have the Exchange Offer completed consummated not later than 210 days 30 Business Days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days Business Days from the date such notice is mailed) (the "Exchange DatesEXCHANGE DATES");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Registrable Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(iA) accept for exchange Registrable Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer; and
(iiB) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in aggregate principal amount to the aggregate principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially its reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. If, during the period the Exchange Offer Registration Statement is effective, an event occurs which makes any statement made in such Exchange Offer Registration Statement or the related Prospectus untrue in any material respect or which requires the making of any changes in such Exchange Offer Registration Statement in order to make the statements therein not misleading or in such Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Company shall use its reasonable best efforts to prepare and file with the SEC a supplement or post-effective amendment to the Exchange Offer Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company agrees to notify the Holders to suspend the exchange of the Registrable Securities as promptly as practicable after the occurrence of such an event, and the Holders hereby agree to suspend such exchange until the Company has amended or supplemented the Prospectus to correct such misstatement or omission.
(b) In the event that If (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 consummated within 260 days from following the Closing Date or (iii) the Exchange Offer has been completed and in the written opinion of counsel for the Initial Purchasers Holders a Shelf Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers any Holder in connection with any offering reoffering or sale resale of Registrable Securities, the Company and shall (x) file with the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after SEC within 75 days following such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may be, a Shelf Registration Statement providing for the sale resale by the Holders (other than those who fail to comply with the paragraph immediately following clause (p) of Section 3) of all of the their Registrable Securities and (y) use its reasonable best efforts to have cause such Shelf Registration Statement declared to become effective by within 60 days of the SECfiling of such Shelf Registration Statement. In the event If the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers reoffers and sales resales of Registrable Securities held by the Initial Purchasers after completion of Holders who must deliver the Exchange Offerrelated Prospectus. The Company and the Guarantors agree agrees to use their commercially its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) of the 1933 Act with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration StatementStatement or cease to be Registrable Securities within the meaning of this Agreement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts discounts, if any, and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the a Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume.
(e) The Company and the Initial Purchasers agree that the Holders will suffer damages if the Company fails to fulfill its obligations under Section 2(a) or Section 2(b) hereof and that it would not be feasible to ascertain the extent of such damages with precision. In Accordingly, the event Company agrees that if:
(i) the Exchange Offer Registration Statement is not completed and filed with the Shelf SEC on or prior to the 90th day following the Closing Date,
(ii) the Exchange Offer Registration Statement is not declared effective on or prior to 210 days from the 210th day following the Closing Date,
(iii) the Exchange Offer is not completed on or prior to the 260th day following the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or or
(iv) the Shelf Registration Statement is required to be filed but is not filed or declared effective by within the SEC.
(e) Without limiting the remedies available time period set forth herein or is declared effective but thereafter ceases to be effective or usable prior to the Initial Purchasers and expiration of the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor period referred to comply in Rule 144(k) with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury respect to the Initial Purchasers Registrable Securities other than after the Registrable Securities have been disposed of under the Shelf Registration Statement or cease to be Registrable Securities, without being succeeded within two Business Days by a post-effective amendment which cures the Holders for which there failure and that is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.itself immediately declared effective,
Appears in 1 contract
Samples: Registration Rights Agreement (Southern Natural Gas Co)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff staff of the SEC, the Company and the Guarantors shall use their commercially its reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange OfferDate. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially its reasonable best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Exchange Offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted 6 5 for exchange;
(ii) the dates last date of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailedmailed and which may be extended by the Company) (the "Exchange DatesDate");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 at maturity of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his the election of such Holder to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
: (i) accept for exchange Registrable Securities 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 Registrable Securities or portions thereof so accepted for exchange by the Company and the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount at maturity to the principal amount at maturity of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially its reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agent of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agent shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date December 25, 1998 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agent a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agent in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration of Securities pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all agency or brokerage fees and commissions, underwriting discounts and commissions and transfer taxes, if any, and the fees and disbursements of any counsel and experts retained by such Holder (other than the one counsel for the Holders selected by the Majority Holders), relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially its reasonable best efforts (i) to cause to be filed with the SEC an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities Certificates for Exchange Securities Certificates, (ii) to have the Exchange Offer Registration Statement declared effective and (iii) to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company Exchange Offer Registration Statement may also include the Class A-1 Certificates, the Class A-2 Certificates and the Guarantors Class B Certificates. The Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially its reasonable best efforts to have the Exchange Offer completed consummated not later than 210 the date that is 270 days (or, if such date is not a business day, the first business day thereafter) after the Closing DateOctober 4, 2001. The Company and shall, or shall cause the Guarantors shall Trustee to, commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities Certificates validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business 30 days (or such shorter period as allowed by applicable law or SEC rules and interpretations) from the date such notice is mailed) (the "Exchange Dates");
(iii) that any Registrable Security Certificate not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security Certificate exchanged pursuant to the Exchange Offer will be required to surrender such Registrable SecurityCertificate, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount and class of Registrable Securities Certificates delivered for exchange exchange, and a statement that such Holder is withdrawing his election to have such Securities Certificates exchanged. As soon as practicable after the last Exchange Date, the Company and shall or shall cause the Guarantors shallTrustee to:
(i) accept for exchange Registrable Securities Certificates 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 Certificates or portions thereof so accepted for exchange by the Company Company, and the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security Certificates equal in principal amount to the principal amount of the Registrable Securities Certificates surrendered by such Holder. The Company and the Guarantors shall use their commercially its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws laws, rules and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities Certificates in the Exchange Offer. Each Holder participating in the Exchange Offer shall be required to represent to the Company at or prior to the consummation of the Exchange Offer that (i) any Exchange Certificates received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Class C Certificates or the Exchange Certificates within the meaning of the 1933 Act, and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the 1933 Act, of the Company or any Trustee, nor a broker-dealer tendering Class C Certificates acquired directly from the Company or any Trust for its own account. If such Holder is a broker-dealer, it will be required to represent that the Class C Certificates were acquired as a result of market-marking activities or other trading activities and that it will deliver a prospectus in connection with any resale of such Exchange Certificates. Each such Holder, whether or not it is a broker-dealer, shall also represent that it is not acting on behalf of any person that could not truthfully make any of the foregoing representations contained in this paragraph. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply (to the extent applicable) solely with respect to Registrable Certificates held by the Placement Agents or any Participating Broker-Dealers (as defined in Section 4(a)) as provided in (and subject to) Section 2(b)(ii), and the Company shall have no further obligation to register Class C Certificates (other than such Registrable Certificates of the Placement Agents and Participating Broker-Dealers) pursuant to Section 2(b) of this Agreement.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, or (ii) the Exchange Offer is not for any other reason completed by 210 days from the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agents a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agents in connection with any primary offering or sale of Registrable SecuritiesCertificates, the Company and the Guarantors shall use their commercially its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Certificates (in the case of clause (i) above) or by the Placement Agents (in the case of clause (ii) above) and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iiiii) of the preceding sentence, the Company and the Guarantors shall use their commercially its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities Certificates and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities Certificates held by the Initial Purchasers Placement Agents after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration for a period of the period referred to in Rule 144(k) two years after its effective date with respect to the Registrable Securities Certificates or such shorter period that will terminate when all of the Registrable Securities Certificates covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration StatementStatement or may be freely sold pursuant to Rule 144(k) under the 1933 Act. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities Certificates copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities Certificates pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, that if, after it has been declared effective, the offering of Registrable Securities Certificates pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Shelf Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities Certificates pursuant to such Registration Statement may legally resume. In the event that neither the consummation of the Exchange Offer nor the declaration by the SEC of a Shelf Registration to be effective (each a "Registration Event") occurs on or prior to the 270th day (or, if such 270th day is not a business day, the first business day thereafter) after October 4, 2001, the interest rate per annum borne by the Series C Equipment Notes shall be increased by 0.50%, effective from and including such 270th day (or, if such 270th day is not a business day, the first business day thereafter), to but excluding the date on which a Registration Event occurs provided that if, to permit additional Holders of Class C Certificates (who have notified the Company in writing its intention to participate in the Exchange Offer) to participate in the Exchange Offer, the length of such Exchange Offer is extended beyond such 270th day (or, if such 270th day is not a business day, the first business day thereafter), the interest rate shall not be increased if the Exchange Offer is not completed and consummated within 60 days of such extension. In the event that the Shelf Registration Statement is required to be effective pursuant to Section 2(b) hereof ceases to be effective at any time during the period specified by Section 2(b) hereof for more than 60 days, whether or not declared effective on or prior to 210 days from the Closing Dateconsecutive, during any 12-month period, the interest rate on borne by the Securities will Series C Equipment Notes shall be increased by 0.250.50% per annum from the 61st day of the applicable 12-month period such Shelf Registration Statement ceases to be effective until the Exchange Offer is completed or such time as the Shelf Registration Statement is declared effective by the SECagain becomes effective.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers each Placement Agent or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (American Airlines Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors Guarantor shall use their commercially reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors Guarantor to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors Guarantor shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors Guarantor shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors Guarantor shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors Guarantor shall use their commercially reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors Guarantor determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date January 3, 2004 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Purchasers, a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors Guarantor shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsGuarantor, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors Guarantor are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors Guarantor shall use their commercially reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors Guarantor agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors Guarantor further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors Guarantor agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors Guarantor shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed consummated and the Shelf Registration Statement is not declared effective on or prior to 210 days from January 3, 2004, then commencing on the Closing Datefollowing day, the interest rate on the Securities will be increased by 0.250.5% per annum (“Additional Interest”) until the Exchange Offer is completed consummated or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors Guarantor acknowledge that any failure by the Company or any the Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and ’s or the Guarantors' Guarantor’s obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors Issuer shall use their commercially its reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors Issuer to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors Issuer shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially its reasonable best efforts to have the Exchange Offer completed Consummated not later than 210 days after following the Closing Date. The Company and the Guarantors Issuer shall commence the Exchange Offer by mailing the related exchange offer Prospectus and any accompanying documents to each Holder (it being agreed that delivery to DTC shall constitute mailing) stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) unless the Registrable Security is held through DTC, that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors Issuer shall:
(i) accept for exchange Registrable Securities 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 Registrable Securities or portions thereof so accepted for exchange by the Company Issuer and the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors Issuer shall use their commercially its reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. No securities other than the Securities or any additional securities issued under the Indenture and, at the Company's option, the Company's 10% Senior Notes due 2013 or any additional securities issued under the 10% Senior Notes Indenture, shall be included in the Exchange Offer Registration Statement. The Company and the Guarantors Issuer shall inform the Initial Purchasers Purchaser of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Purchaser shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine Issuer determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated Consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by Consummated within 210 days from after the Closing Date or (iii) if (A) the Initial Purchaser holds any Securities 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 (B) any Holder is not entitled to participate in the Exchange Offer has been completed Offer, and any such Holder or Placement Agent so requests in writing on or prior to the opinion 60th day after the consummation of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable SecuritiesExchange Offer, the Company and the Guarantors Issuer shall use their commercially its reasonable best efforts to cause to be filed as soon as reasonably practicable after such determination, date or notice receipt of such opinion of counsel is given to the Company and the Guarantors, as the case may benotice, a Shelf Registration Statement providing for the sale by the Holders of all of the such Registrable Securities referred to in clause (iii) and shall use its reasonable best efforts to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are Issuer is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company Issuer shall file and the Guarantors shall use their commercially its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all such Registrable Securities referred to in clause (iii) and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers Purchaser or such other Holders after completion of the Exchange Offer. The Company and the Guarantors agree Issuer agrees to use their commercially its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors Issuer further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors Issuer for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree Issuer agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors Issuer shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Exchange Offer Registration Statement or the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed Consummated and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Dateas set forth below, then, the interest rate on the Registrable Securities will be increased by 0.25% per annum until (the "Additional Interest") as follows:
(i) if (A) neither the Exchange Offer Registration Statement nor a Shelf Registration Statement has been filed with the SEC on or prior to the 120th day after the Closing Date or (B) the Issuer is completed required to file a Shelf Registration Statement pursuant to Section 2(b)(iii) hereof and such Shelf Registration Statement is not filed on or prior to the Filing Date applicable thereto then, commencing on the day after either such 120th day in the case of clause (A) or the day after such Filing Date in the case of clause (B), Additional Interest shall accrue on the principal amount of the Registrable Securities at a rate of 0.50% per annum; or
(ii) if (A) neither the Exchange Offer Registration Statement nor a Shelf Registration Statement is declared effective by the SECSEC on or prior to the 180th day after the Closing Date or (B) the Issuer is required to file a Shelf Registration Statement pursuant to Section 2(b)(iii) hereof and such Shelf Registration Statement is not declared effective by the SEC on or prior to the 60th day following the Filing Date applicable thereto then, commencing on the day after either such 180th day in the case of clause (A) or the day after the Filing Date in the case of clause (B), Additional Interest shall accrue on the principal amount of the Registrable Securities at a rate of 0.50% per annum; or
(iii) subject to Sections 2(f) and 2(g) if (A) the Issuer has not exchanged Exchange Securities for all Securities validly tendered in accordance with the terms of the Exchange Offer on or prior to the 210th day after the Closing Date or (B) if applicable, the Shelf Registration Statement has been declared effective and such Shelf Registration Statement ceases to be effective at any time prior to the second anniversary of the Closing Date (or, if earlier, the date when all Securities have been disposed of thereunder), then Additional Interest shall accrue on the principal amount of the Registrable Securities at a rate of 0.50% per annum commencing on (x) the day after the 210th day after the Closing Date, in the case of (A) above, or (y) the day after the day such Shelf Registration Statement ceases to be effective in the case of (B) above; provided, further, that the Issuer shall in no event be required to pay additional interest for more than one event in clauses (i), (ii), or (iii) at any one time; provided further, however, that (1) upon the filing of the Exchange Offer Registration Statement or a Shelf Registration Statement (in the case of clause (i)(A) above) or a Shelf Registration Statement (in the case of clause (ii)(B) above, (2) upon the effectiveness of the Exchange Offer Registration or a Shelf Registration Statement (in the case of clause (ii)(A) above) or a Shelf Registration (in the case of (i)(B) above), or (3) upon the exchange of Exchange Securities for all Registrable Securities tendered (in the case of clause (iii)(A) above), or (4) upon the effectiveness of the Shelf Registration Statement which had ceased to remain effective (in the case of clause (iii)(B) above), Additional Interest on the Securities as a result of such clause (or the relevant subclause thereof), as the case may be, shall cease to accrue.
(e) Without limiting the remedies available to the Initial Purchasers Purchaser and the Holders, the Company and the Guarantors acknowledge Issuer acknowledges that any failure by the Company or any Guarantor it to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Purchaser or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Purchaser or any Holder may obtain such relief as may be required to specifically enforce the CompanyIssuer's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
(f) No Holder of Registrable Securities may include any of its Registrable Securities in any Shelf Registration unless and until such Holder furnishes to the Issuer, in writing within 20 days after receipt of a request therefor, the information with respect to such Holder specified in Items 507 and 508 (as applicable) of Regulation S-K under the 1933 Act and any other applicable rules, regulations or policies of the SEC for use in connection with any Shelf Registration or Prospectus included therein, on a form to be provided by the Issuer. No Holder of Registrable Securities shall be entitled to Additional Interest pursuant to Section 2(d) hereof unless and until such Holder shall have provided all such information. Each selling Holder agrees to furnish promptly to the Issuer additional information to be disclosed so that the information previously furnished to the Issuer by such Holder does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(g) Additional Interest shall not accrue with respect to an event listed in Sections 2(d) hereof (each, a "Registration Default") if (i) such Registration Default under Section 2(d)(iii)(B) hereof occurs because of the filing of a post-effective amendment to such Registration Statement to incorporate annual audited financial information with respect to the Issuer where such post-effective amendment is not yet effective and needs to be declared effective to permit Holders to use the related Prospectus, (ii) such Registration Default occurs because of the occurrence of other material events or developments with respect to the Issuer that would need to be described in such Registration Statement or the related Prospectus, and the effectiveness of such Registration Statement is reasonably required to be suspended while such Registration Statement and related Prospectus are amended or supplemented to reflect such events or developments, (iii) such Registration Default results from the suspension of the effectiveness of such Registration Statement because of the existence of material events or developments with respect to the Issuer or any of its affiliates, the disclosure of which the Issuer determines in good faith would have a material adverse effect on its business, operations or prospects, or (iv) such Registration Default results from the suspension of the effectiveness of such Registration Statement because the Issuer does not wish to disclose publicly a pending material business transaction that has not yet been publicly disclosed; provided, however, that if any such Registration Default exists and continues on more than 45 consecutive days and an aggregate of 90 days in any 12-month period, Additional Interest shall accrue and be payable in accordance with Section 2(d) hereof from the 46th or 91st day, as the case may be, on which any such Registration Default exists, and shall continue to accrue until the date on which such Registration Default is cured.
Appears in 1 contract
Samples: Registration Rights Agreement (Centennial Communications Corp /De)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff staff of the SEC, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities Notes for Exchange Securities Notes and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable its best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities Notes validly tendered 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 DatesEXCHANGE DATES");
(iii) that any Registrable Security Note not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security Note exchanged pursuant to the Exchange Offer will be required to surrender such Registrable SecurityNote, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities Notes delivered for exchange and a statement that such Holder is withdrawing his or her election to have such Securities Registrable Notes exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities Notes 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 Notes or portions thereof so accepted for exchange by the Company and the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security Note equal in principal amount and of like terms to the principal amount of the Registrable Securities Notes surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable its best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Purchaser of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Purchaser shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities Notes in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the date that is six months after the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Purchaser or the Destia Noteholders a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Purchaser or the Destia Noteholder in connection with any offering or sale of Registrable SecuritiesNotes by such Purchaser or such Destia Noteholder, of Registrable Notes that were acquired by the Purchaser or the Destia Noteholder from the Company, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Notes and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially reasonable its best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) under the 1933 Act with respect to all Registrable Notes covered by the Registrable Securities Shelf Registration Statement, or such shorter period that will terminate when all of the Registrable Securities Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration StatementStatement or as would be permitted by the current rules and regulations. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other applicable rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities Notes copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company Note Issuer and the Guarantors Holdings shall use their commercially reasonable best efforts to file and cause to be filed become effective an Exchange Offer Registration Statement covering the offer by the Company Note Issuer and the Guarantors Holdings to the Holders to exchange all of the Registrable Securities Notes for Exchange Securities and Notes, to have such Registration Statement remain effective until the closing of the Exchange OfferOffer and to consummate the Exchange Offer on or prior to June 1, 1997. The Company Note Issuer and the Guarantors Holdings shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable efforts to have the Exchange Offer completed not later than 210 days after the Closing DateSEC. The Company Note Issuer and the Guarantors Holdings shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities Notes validly tendered 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 Registrable Security Note not tendered will remain outstanding and continue to accrue interestinterest or original issue discount, as applicable, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security Note exchanged pursuant to the Exchange Offer will be required to surrender such Registrable SecurityNote, together with the enclosed letters of transmittal, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities Notes delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Notes exchanged. As soon as practicable after the last Exchange Date, the Company Note Issuer and the Guarantors Holdings shall:
(i) accept for exchange Registrable Securities Notes or portions thereof duly 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 Notes or portions thereof so accepted for exchange by the Company Note Issuer and the Guarantors; and
(iii) Holdings and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security Note equal in principal amount to the principal amount of the Registrable Securities Note surrendered by such Holder. The Company Note Issuer and the Guarantors Holdings shall use their commercially reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, condition other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company Note Issuer and the Guarantors Holdings shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities Notes in the Exchange Offer.
(b) In the event that (i) the Company Note Issuer and the Guarantors Holdings determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date June 1, 1997 or (iii) the Exchange Offer has been completed and and, in the opinion of counsel for the Initial Purchasers Placement Agents, a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers a Placement Agent in connection with any offering or sale by it of Registrable SecuritiesNotes, the Company Note Issuer and the Guarantors Holdings shall use their commercially reasonable best efforts to cause to be filed become effective as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsNote Issuer, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Notes and to have keep such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously registration statement effective until the expiration of the time period referred to in Rule 144(k) with respect to under the Registrable Securities 1933 Act after the Closing Date or such shorter period that will terminate when all of the Registrable Securities Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company Note Issuer and the Guarantors Holdings further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company Note Issuer and the Guarantors Holdings for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company Note Issuer and the Guarantors Holdings agree to furnish to the Holders of Registrable Securities Notes copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company Note Issuer and the Guarantors Holdings shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities Notes pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities Notes pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event the Exchange Offer is not completed consummated and the a Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing DateJune 1, 1997, the annual interest rate on borne by the Securities will Notes shall be permanently increased by 0.250.5% per annum until the Exchange Offer is completed or the annum, and such additional interest will accrue from such date and be payable in cash, semiannually, in arrears, on each May 15 and November 15, commencing November 15, 1997. If a Shelf Registration Statement is declared effective required solely by the SECmatters referred to in clause (iii) of the first sentence of Section 2(b), the foregoing interest shall be payable only to the Placement Agents, with respect to Notes held by them, and only with respect to any period (after June 1, 1997) during which such Shelf Registration Statement is not effective.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Company Note Issuer and the Guarantors Holdings acknowledge that any failure by the Company or any Guarantor Note Issuer and Holdings to comply with its their respective obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the CompanyNote Issuer's and the Guarantors' Holdings's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Notes Registration Rights Agreement (RSL Communications PLC)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors Guarantor shall use their commercially reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors Guarantor to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors Guarantor shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable its best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors Guarantor shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors Guarantor shall use their commercially reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors Guarantor determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date September 26, 2002 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agents a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agents in connection with any offering or sale of Registrable Securities, the Company and the Guarantors Guarantor shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors Guarantor are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors Guarantor shall use their commercially reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers Placement Agents after completion of the Exchange Offer. The Company and the Guarantors Guarantor agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.Shelf
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially its reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company will file an Exchange Offer Registration Statement with the SEC on or prior to 60 days after the Closing Date and will use its reasonable best efforts to have the Guarantors Exchange Offer Registration Statement declared effective by the SEC on or prior to 240 days after the Closing Date. The Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially its reasonable best efforts to have the Exchange Offer completed consummated not later than 210 30 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially its reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff staff of the SEC, (ii) the Exchange Offer is not for any other reason completed declared effective by 210 the SEC on or prior to 240 days from after the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. If the Company is obligated to file a Shelf Registration Statement pursuant to this Section 2(b), the Company will file the Shelf Registration Statement with the SEC on or prior to 60 days after the Closing Date and will use its reasonable best efforts to cause the Shelf Registration to be declared effective by the SEC on or prior to 270 days after such obligation arises, or otherwise in accordance with the terms of this Agreement. The Company and the Guarantors agree agrees to use their commercially its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) after the Closing Date, with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company will, in the event of such a shelf registration, provide to each Holder copies of the prospectus, notify each Holder when the Shelf Registration Statement for the Notes has become effective and take certain other actions as are required to permit resales of the Guarantors Notes. The Company further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event (1) the Exchange Offer is not completed and Company fails to file any of the Shelf Registration Statement registration statements required by this Agreement on or before the date specified for such filing; or (2) any of such registration statements is not declared effective by the SEC on or prior to 210 days from the Closing date specified for such effectiveness (the “Effectiveness Target Date, ”); or (3) the interest rate on the Securities will be increased by 0.25% per annum until Company fails to consummate the Exchange Offer is completed within 30 business days of the Effectiveness Target Date with respect to the Exchange Offer registration statement; or (4) the Shelf Registration Statement is declared effective but thereafter ceases to be effective or usable in connection with resales or exchanges of Notes during the periods specified in this Agreement (each such event referred to in clauses (1) through (4) above, a “Registration Default”), then the Company will pay Additional Interest (in addition to interest which is otherwise due on the Notes) to each Holder of Notes, with respect to the first 90-day period immediately following the occurrence of the first Registration Default, in an amount equal to 0.25% per annum of the principal amount of Notes held by such Holder. The amount of Additional Interest (in addition to interest which is otherwise due on the SECNotes) will increase by an additional 0.25% per annum of the principal amount of such Notes with respect to each subsequent 90-day period until all Registration Defaults have been cured, up to a maximum amount of Additional Interest (in addition to interest which is otherwise due on the Notes) for all Registration Defaults of 1.0% per annum of the principal amount of such Notes.
(e) All Additional Interest paid in connection with a Registration Default will be paid by the Company in cash semi-annually on the regular interest payment dates described above. Following the cure of all Registration Defaults, the accrual of Additional Interest will cease.
(f) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' ’s obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (E Trade Financial Corp)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SECSEC and subject to the condition set forth in Section 2(b), the Company and the Guarantors shall use their commercially its reasonable best efforts to cause to be filed an Exchange Offer Registration Statement not later than the 365th day following the Issuance Date (or, if such day is not a business day, the first business day thereafter) covering the offer by the Company and the Guarantors to the Holders who are not prohibited by any law or policy of the SEC, or applicable interpretation of the Staff of the SEC, from participating in the Exchange Offer to exchange all of the Registrable Securities Certificates for Exchange Securities Certificates, to cause the Exchange Offer Registration Statement to be declared or otherwise become effective and to have such the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC SEC. The Company shall keep the exchange offer open for not less than 20 business days after the date the notice referred to below is mailed to the Holders, and the Exchange Deadline shall not be extended because of this requirement. The Company shall use their commercially its reasonable best efforts to have the Exchange Offer completed consummated not later than 210 days the 455th day after the Closing DateIssuance Date (or, if the last day of such 455-day period is not a business day, the first business day thereafter) (the “Exchange Deadline”). The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder statingHolder, through DTC or otherwise, stating in such Prospectus or accompanying documents, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities Certificates validly tendered and not 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) (such dates, the "“Exchange Dates"”);
(iii) that any Registrable Security Certificate not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security Certificate exchanged pursuant to the Exchange Offer will be required to surrender such Registrable SecurityCertificate, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities Certificates delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Registrable Certificates exchanged. As soon as practicable after the last Exchange DateDate for the Exchange Offer, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities Certificates 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 Certificates or portions thereof so accepted for exchange by the Company and, subject to Section 4.01(f) and Section 4.04 of the Guarantors; and
(iii) issueTrust Supplement, and cause the Trustee to promptly issue, authenticate and mail to each Holder, an Exchange Security Certificate equal in principal amount to the principal amount of the Registrable Securities Certificates surrendered by such Holder. The Company and the Guarantors shall use their commercially its reasonable best efforts to complete the 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 the Exchange Offer. The Except as set forth in Section 2(b), the Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses known to the Company (including through DTC) of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities Certificates in the Exchange Offer. If the Company effects the Exchange Offer, the Company shall be entitled to close the Exchange Offer twenty (20) business days after such commencement (provided that the Company has accepted all the Certificates theretofore validly tendered and not withdrawn in accordance with the terms of the Exchange Offer). Each Holder participating in the Exchange Offer shall be required to represent to the Company in writing that at the time of the consummation of the Exchange Offer (i) any Exchange Certificates received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any Person to participate in the distribution (within the meaning of the 1933 Xxx) xx the Certificates or the Exchange Certificates, (iii) such Holder is not an affiliate of the Company within the meaning of Rule 405 under the 1933 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 Exchange Certificates and (v) if such Holder is a broker dealer, that it will receive Exchange Certificates for its own account in exchange for Certificates that were acquired as a result of market making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with the resale of such Exchange Certificates.
(b) (X) In the event that (i) the Company and the Guarantors determine determines (1) that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after by the Exchange Date Deadline because it would violate applicable law or the applicable interpretations of the Staff of the SEC, SEC or (ii2) the issuance of the Exchange Certificates would cause the Trust to be required to become registered as an investment company under the United States Investment Company Act of 1940, as amended, or (Y) in the event that the Company determines that the “Exchange Offer is not for any other reason completed by 210 days from the Closing Date or Registration” (iii) the Exchange Offer has been completed and as defined in the opinion of counsel Class A Registration Rights Agreement) provided for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iiiSection 2(a) of the preceding sentenceClass A Registration Rights Agreement is not available to Class A Certificates or if such “Exchange Offer Registration” is not consummated for any reasonand a “Shelf Registration Statement” (as defined in the Class A Registration Rights Agreement)is filed with respect to Class A Certificates, then the Company (in the case of clause (X)) shall, and (in the Guarantors case of clause (Y)) shall use their commercially reasonable efforts have the option to, in lieu of effecting the registration of Exchange Certificates pursuant to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant and at no cost to Section 2(athe Holders, (i) as promptly as practicable, file with respect to all the SEC a shelf registration statement covering resales of the Registrable Securities and Certificates (a “Shelf Registration Statement Statement”), (which may be a combined Registration Statement with the Exchange Offer Registration Statementii) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially its reasonable best efforts to keep cause the Shelf Registration Statement continuously to be declared or otherwise become effective until under the expiration Securities Act by the Exchange Deadline and (iii) use its reasonable best efforts to keep effective the Shelf Registration Statement for a period of the period referred to in Rule 144(k) with respect to the Registrable Securities one year after its effective date (or for such shorter period that will terminate as shall end when all of the Registrable Securities Certificates covered by the Shelf Registration shelf registration Statement have been sold pursuant thereto or may be freely sold pursuant to Rule 144 under the Shelf Registration StatementSecurities Act). The Company and the Guarantors further agree agrees to supplement or amend any the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and for the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially its reasonable best efforts to cause any such amendment to become effective and such the Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities Certificates copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the any registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities Certificates pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SECSEC or otherwise becomes effective under SEC rules. As provided for in the Pass Through Trust Agreement, if neither the Exchange Offer is consummated nor the Shelf Registration Statement is declared effective or otherwise becomes effective under SEC rules on or prior to the Exchange Deadline, the interest rate on the Registrable Certificates and the related Equipment Notes held by the Trust will be increased by 0.50% per annum effective as of the first day after the Exchange Deadline but only until the Exchange Offer is consummated or the Shelf Registration Statement is declared or otherwise becomes effective under SEC rules. If the Shelf Registration Statement ceases to be available for more than 45 days during any three-month period or 120 days within any twelve- month period, during the period that it is required to be available pursuant to Section 2(b), the interest rate per annum borne by the Registrable Certificates and the related Equipment Notes held by the Trust shall be increased by 0.50% from the 46th day or 121st day, as applicable, until such time as the Shelf Registration Statement again becomes available; providedprovided that for the purpose of this sentence, however, that, if, after it has been declared effective, the Shelf Registration Statement shall be deemed to have ceased to be available during:
(A) any period in which the offering of Registrable Securities Certificates pursuant to a the Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court;
(B) the occurrence of any event or the existence of any fact, such Registration Statement will be deemed not to have become effective during the period as a result of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and which the Shelf Registration Statement is shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not declared effective on misleading, with respect to which notice has been given by the Company pursuant to Section 3(i); or
(C) the occurrence or prior existence of any pending corporate development that, in the discretion of the Company, makes it appropriate to 210 days from suspend the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or availability of the Shelf Registration Statement is declared effective with respect to which notice has been given by the SECCompany pursuant to Section 3(e).
(e) Without limiting The maximum possible increase in the remedies available to interest rate per annum on the Initial Purchasers Registrable Certificates and the Holders, the Company and the Guarantors acknowledge that any failure related Equipment Notes held by the Company or any Guarantor Trust pursuant to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b2(d) hereof, at any time, shall be 0.50%.
Appears in 1 contract
Samples: Registration Rights Agreement (Latam Airlines Group S.A.)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff staff of the SEC, the Company and shall prepare and, not later than 180 days following the Guarantors Closing Date (or if such 180th day is not a Business Day, the next succeeding Business Day), shall use their commercially its reasonable efforts to cause to be filed an file with the SEC the Exchange Offer Registration Statement covering the offer by the Company and the Guarantors with respect to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after use its reasonable efforts to (i) cause the Exchange Offer Registration Statement has been declared to become effective by under the SEC 1933 Act within 270 days of the Closing Date (or if such 270th day is not a Business Day, the next succeeding Business Day) and use their commercially reasonable efforts to have (ii) consummate the Exchange Offer completed not later than 210 within 310 days after of the Closing DateDate (or if such 310th day is not a Business Day, the next succeeding Business Day). The Upon the effectiveness of the Exchange Offer Registration Statement, the Company and the Guarantors shall promptly commence the Exchange Offer by mailing delivering the related exchange offer Prospectus and accompanying documents documents, if any, to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of expiration date for acceptance for exchange (which shall be a period of date at least 20 business days Business Days from the date such notice Prospectus is maileddelivered, and which may be extended by the Company from time to time pursuant to the procedures set forth in such Prospectus) (the "Exchange Dates"“Expiration Date”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, together with the enclosed letters of transmittal, if any, to the institution and at the address specified in the notice prior to the close of business on the last Exchange Expiration Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Expiration Date, by sending to the institution and at the address specified in the such Prospectus a written or facsimile notice a telegram, telex, facsimile transmission or letter of withdrawal setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his its election to have such Securities exchanged. As soon as reasonably practicable after the last Exchange Expiration Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail deliver to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially its reasonable efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders agrees (x) to whom include in the Exchange Offer Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is made, a Participating Broker-Dealer and (y) to use reasonable efforts to keep such Exchange Offer Registration Statement effective for a period of 90 days after the Initial Purchasers shall have Expiration Date (as such period may be extended pursuant to the right, subject to applicable law, to contact such Holders and otherwise facilitate penultimate paragraph of Section 3 of this Agreement) (the tender of Registrable Securities in the Exchange Offer“Resale Period”).
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable within a reasonable period of time after the Exchange Expiration Date because it would violate applicable law or the applicable interpretations of the Staff staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 consummated within 310 days from of the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Purchasers, in a form reasonably satisfactory to the Company, a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially its reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and shall use its reasonable efforts to have such Shelf Registration Statement declared effective by the SEC, provided, that, in no event shall the Company be required to file or cause to be declared effective such Shelf Registration Statement before the date on which it is required to file or cause to be declared effective, as applicable, the Exchange Offer Registration Statement pursuant to Section 2(a). In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company shall file and the Guarantors shall use their commercially its reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially its reasonable efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or Statement, by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially its reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicablereasonably practicable thereafter. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' ’s obligations under Section 2(a) and Section 2(b) hereof).
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities Notes for Exchange Securities Notes and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable its best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities Notes validly tendered 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 Registrable Security Note not tendered will remain outstanding and continue to accrete in value until July 15, 2002 and thereafter will accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security Note exchanged pursuant to the Exchange Offer will be required to surrender such Registrable SecurityNote, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 at maturity of Registrable Securities Notes delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Notes exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities Notes 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 Notes or portions thereof so accepted for exchange by the Company and the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security Note equal in principal amount at maturity to the principal amount at maturity of the Registrable Securities Notes surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable its best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agent of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agent shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities Notes in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date August 15, 2000 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agent a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agent in connection with any offering or sale of Registrable SecuritiesNotes, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Notes and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable its best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities Notes and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities Notes held by the Initial Purchasers Placement Agent after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially reasonable its best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities Notes or such shorter period that will terminate when all of the Registrable Securities Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities Notes copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities Notes pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities Notes pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event the Exchange Offer is not completed consummated and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing DateJuly 15, the 2000, interest rate on the Securities Notes (in addition to the accrual of interest (or original issue discount) otherwise due on the Notes) will be increased by 0.25accrue from July 15, 2000, at a rate of 0.5% per annum and be payable in cash semi-annually, commencing January 15, 2001, until the Exchange Offer is completed consummated or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agent and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agent or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agent or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Notes Registration Rights Agreement (Earthwatch Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors Issuer shall use their commercially reasonable its best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors Issuer to the Holders to exchange all of the Registrable Securities Notes for Exchange Securities Notes and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors Issuer shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable its best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors Issuer shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities Notes validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least not less than 20 business days commencing from the date such notice is mailed) (the "Exchange DatesEXCHANGE DATES");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution institutions and at the address addresses (located in the Borough of Manhattan, The City of New York and in Luxembourg) specified in the notice prior to the close of business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the applicable institution and at the address (located in either the Borough of Manhattan, The City of New York or Luxembourg) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities Notes delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Notes exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors Issuer shall:
(i) accept for exchange Registrable Securities Notes 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 Notes or portions thereof so accepted for exchange by the Company Issuer and the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security Notes equal in principal amount to the principal amount of the Registrable Securities Notes surrendered by such Holder. The Company and the Guarantors Issuer shall use their commercially reasonable its best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors Issuer shall inform the Initial Purchasers Representative of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Representative shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities Notes in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine Issuer determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 the date that is 270 days from after the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Representative in connection with any offering or sale of Registrable SecuritiesNotes, the Company and the Guarantors Issuer shall use their commercially reasonable its best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsIssuer, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Notes and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree Issuer agrees to use their commercially reasonable its best efforts to keep the Shelf Registration Statement continuously effective until the expiration second anniversary of the period referred to in Rule 144(k) with respect to the Registrable Securities Closing Date or such shorter period that will terminate when all of the Registrable Securities Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors Issuer further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors Issuer for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree Issuer agrees to furnish to the Holders of Registrable Securities Notes copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors Issuer shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SECSEC and subject to the condition set forth in Section 2(b), the Company and the Guarantors Company, with respect to each Class of Certificates, shall use their commercially its reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the applicable Holders who are not prohibited by any law or policy of the SEC, or applicable interpretation of the Staff of the SEC, from participating in the applicable Exchange Offer to exchange all of the applicable Registrable Securities Certificates for applicable Exchange Securities Certificates, to have such Exchange Offer Registration Statement declared effective and to have such Exchange Offer Registration Statement remain effective until the closing of the such Exchange Offer. The Company and the Guarantors shall commence the such Exchange Offer promptly after the such Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially its reasonable best efforts to have the such Exchange Offer completed consummated not later than 210 270 days after the Closing DatePlan Effective Date (or, if the last day of such 270-day period is not a business day, the first business day thereafter) (the “Exchange Deadline”). The Company and the Guarantors shall commence the such Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder statingapplicable Holder, through DTC or otherwise, stating in such Prospectus or accompanying documents, in addition to such other disclosures as are required by applicable law:
(i) that the such Exchange Offer is being made pursuant to this Registration Rights Agreement and that all applicable Registrable Securities Certificates validly tendered and not 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) (such dates, the "“Exchange Dates"”);
(iii) that any applicable Registrable Security Certificate not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that applicable Holders electing to have a an applicable Registrable Security Certificate exchanged pursuant to the such Exchange Offer will be required to surrender such Registrable SecurityCertificate, 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 last applicable Exchange Date; and
(v) that applicable Holders will be entitled to withdraw their election, not later than the close of business on the last applicable Exchange Date, by 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 the applicable Registrable Securities Certificates delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Registrable Certificates exchanged. As soon as practicable after the last applicable Exchange DateDate for any such Exchange Offer, the Company and the Guarantors shall:
(i) accept for exchange the applicable Registrable Securities Certificates or portions thereof tendered and not validly withdrawn pursuant to the such Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all applicable Registrable Securities Certificates or portions thereof so accepted for exchange by the Company and, subject to Section 4.01(f) and (with respect to the Guarantors; and
Class A Certificates) Section 4.03 of the Class A Trust Supplement and (iiiwith respect to the Class B Certificates) issueSection 4.04 of Class B Trust Supplement, and cause the Trustee to promptly issue, authenticate and mail to each applicable Holder, an applicable Exchange Security Certificate equal in principal amount to the principal amount of the applicable Registrable Securities Certificates surrendered by such Holder. The Company and the Guarantors Company, with respect to each Class of Certificates, shall use their commercially its reasonable best efforts to complete the applicable 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 the such Exchange Offer. The Except as set forth in Section 2(b), such Exchange Offer shall not be subject to any conditions, other than that the such Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses known to the Company (including through DTC) of the applicable Holders to whom the such Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of the applicable Registrable Securities Certificates in such Exchange Offer. If the Company effects, with respect to each Class of Certificates, the applicable Exchange Offer, the Company shall be entitled to close such Exchange Offer twenty (20) business days after such commencement (provided that the Company has accepted all the applicable Certificates theretofore validly tendered and not withdrawn in accordance with the terms of such Exchange Offer). With respect to each Class of Certificates, each applicable Holder participating in the applicable Exchange OfferOffer shall be required to represent to the Company in writing that at the time of the consummation of such Exchange Offer (i) any applicable Exchange Certificates received by such Holder will be acquired by such Holder in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any Person to participate in the distribution (within the meaning of the 0000 Xxx) of the applicable Certificates or such Exchange Certificates, (iii) such Holder is not an affiliate of the Company within the meaning of Rule 405 under the 1933 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 such Exchange Certificates and (v) if such Holder is a broker dealer, that such Holder will receive such Exchange Certificates for its own account in exchange for such Certificates that were acquired as a result of market making activities or other trading activities and that such Holder will be required to acknowledge that it will deliver a prospectus in connection with the resale of such Exchange Certificates.
(b) In (X) With respect to each Class of Certificates, in the event that (i) the Company and the Guarantors determine determines (1) that the applicable Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after by the Exchange Date Deadline because it would violate applicable law or the applicable interpretations of the Staff of the SEC, SEC or (ii2) the issuance of the applicable Exchange Certificates (without transfer restrictions in the case of the Class A Certificates) would cause the Class A Trust or the Class B Trust, as applicable, to be required to become registered as an investment company under the Investment Company Act of 1940, as amended, or (Y) with respect to the Class B Certificates, in the event that the Company determines that the applicable Exchange Offer Registration provided for in Section 2(a) above is not available to Class A Certificates or if such Exchange Offer Registration is not consummated for any other reason completed by 210 days from the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may be, a Shelf Registration Statement providing for is filed with respect to Class A Certificates as provided below, then the sale by Company (in the Holders case of all clause (X)) shall, and (in the case of clause (Y)) shall have the option to, in lieu of effecting the registration of the Registrable Securities and applicable Exchange Certificates pursuant to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant and at no cost to Section 2(athe holders of the applicable Registrable Certificates, (i) as promptly as practicable, file with respect the SEC a shelf registration statement covering resales of the applicable Registrable Certificates (each, a “Shelf Registration Statement”), (ii) use its reasonable best efforts to all Registrable Securities and a cause such Shelf Registration Statement (which may to be a combined Registration Statement with declared or otherwise became effective under the Securities Act by the 90th day after the Exchange Offer Deadline (or, if such 90th day is not a business day, the first business day thereafter) (the “Shelf Registration StatementDeadline”) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to (iii) use their commercially its reasonable best efforts to keep the effective such Shelf Registration Statement continuously for a period of one year after its effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities date (or for such shorter period that will terminate as shall end when all of the applicable Registrable Securities Certificates covered by the such Shelf Registration Statement have been sold pursuant thereto or may be freely sold pursuant to Rule 144 under the Shelf Registration StatementSecurities Act). The Company and the Guarantors further agree agrees to supplement or amend the any such Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a an applicable Holder with respect to information relating to such Holder, and to use their commercially its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of applicable Registrable Securities Certificates copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the any registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities Certificates pursuant to the a Shelf Registration Statement.
(d) An With respect to each Class of Certificates, an applicable Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a an applicable Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SECSEC or otherwise becomes effective under SEC rules. As provided for in the applicable Pass Through Trust Agreement, if neither such Exchange Offer is consummated nor such Shelf Registration Statement is declared effective or otherwise becomes effective under SEC rules on or prior to the Shelf Registration Deadline, the interest rate on the Certificates of the applicable Class will be increased by 0.50% per annum effective as of the first day after the Shelf Registration Deadline but only until such Exchange Offer is consummated or such Shelf Registration Statement is declared or otherwise becomes effective under SEC rules. If such Shelf Registration Statement ceases to be available for more than 45 days during any three-month period or 120 days within any twelve-month period, during the period that such Shelf Registration Statement is required to be available pursuant to Section 2(b), the interest rate per annum borne by the Certificates of the applicable Class shall be increased by 0.50% from the 46th day or 121st day, as applicable, until such time as such Shelf Registration Statement again becomes available; providedprovided that for the purpose of this sentence, however, that, if, after it has been declared effective, such Shelf Registration Statement shall be deemed to have ceased to be available during:
(A) any period in which the offering of the applicable Registrable Securities Certificates pursuant to a such Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court;
(B) the occurrence of any event or the existence of any fact, as a result of which such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and the Shelf Registration Statement is shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not declared effective on misleading, with respect to which notice has been given by the Company pursuant to Section 3(i); or
(C) the occurrence or prior existence of any pending corporate development that, in the discretion of the Company, makes it appropriate to 210 days from suspend the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the availability of such Shelf Registration Statement is declared effective with respect to which notice has been given by the SECCompany pursuant to Section 3(e).
(e) The maximum possible increase in the interest rate per annum on each Class of Certificates pursuant to Section 2(d) hereof, at any time, shall be 0.50%.
(f) Without limiting the remedies available to the Initial Purchasers and the applicable Holders, the Company and the Guarantors acknowledge that acknowledges that, with respect to each Class of Certificates, any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the such Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any such Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' ’s obligations under Section 2(a) and Section 2(b) hereof.
(g) Each Holder of Class A Certificates agrees that if the Class A Certificates do not have an Investment Grade Rating and such Holder is (i) an affiliate of the Company, or the Class A Trust, or a broker-dealer selling or otherwise transferring Class A Certificates acquired directly from the Company for its own account, or (ii) an underwriter as defined in Section 2(a)(11) of the 1933 Act, such Holder (a) may not resell or otherwise transfer such Class A Certificates under an applicable Shelf Registration Statement and (b) may only offer, sell or otherwise transfer such Class A Certificates to qualified institutional buyers within the meaning of Rule 144A of the rules and regulations promulgated under the 1933 Act.
(h) Each Holder of Class B Certificates agrees that, for so long as Class B Certificates remain outstanding, such Holder may only offer, sell or otherwise transfer Class B Certificates to qualified institutional buyers in compliance with, and within the meaning of, Rule 144A of the rules and regulations promulgated under the 1933 Act. In addition, each Holder of Class B Certificates or Exchange Certificates issued with respect to Class B Certificates, as the case may be, agrees that, for so long as such Certificates remain outstanding, including after the consummation of an Exchange Offer Registration as provided in Section 2(a) above or a Shelf Registration as provided in Section 2(b) above, such Certificates shall bear the restrictive legends set forth in Section 4.02 or 4.03, as applicable, of the Class B Trust Supplement.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SECSEC (the “Staff”), the Company and the Guarantors shall use their its commercially reasonable efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their its commercially reasonable efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; provided, however, that, if any of the Registrable Securities are in book-entry form, such Prospectus and accompanying documents shall also specify how the surrender is to be effected in accordance with applicable book-entry procedures; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder; provided that if any of the Registrable Securities are in book-entry form, the Issuers shall, in co-operation with the Trustee, effect the exchange of Registrable Securities in accordance with applicable book-entry procedures. The Company and the Guarantors shall use their commercially reasonable efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Each Holder that participates in the Exchange Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Company in writing (which may be contained in the applicable letter of transmittal) that at the time of consummation of the Exchange Offer: (i) any Exchange Securities received in exchange for Registrable Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Securities; (ii) such Holder has no arrangements or understandings with any Person to participate in the distribution (within the meaning of the 0000 Xxx) of the Exchange Securities within the meaning of the 1933 Act; (iii) such Holder is not an “affiliate” (as defined in Rule 405 of the 0000 Xxx) of the Company; (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 Exchange Securities; and (v) if such Holder is a Participating Broker-Dealer, such Holder will receive Exchange 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 1933 Act (including, but not limited to, the prospectus delivery requirements thereunder).
(b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SECStaff, (ii) the Exchange Offer is not for any other reason completed by 210 days from consummated on or prior to the 360th day following the Closing Date (or if such 360th day is not a Business Day, the next succeeding Business Day) or (iii) any Holder of Registrable Securities notifies the Company that (A) it is prohibited by law or SEC policy from participating in the Exchange Offer, (B) it may not resell the Exchange Securities acquired by it in the Exchange Offer has been completed to the public without delivering a prospectus and the prospectus contained in the opinion of counsel for the Initial Purchasers a Exchange Offer Registration Statement must be filed is not appropriate or available for such resales, or (C) it is a broker-dealer and a Prospectus must be delivered by owns Securities acquired directly from the Initial Purchasers in connection with any offering Company or sale an affiliate of Registrable Securitiesthe Company, then the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SECSEC promptly. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iiiiii)(C) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until two years from the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities Closing Date or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration StatementStatement (the “Shelf Registration Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC: provided that the Company shall be deemed to have furnished such amendment or supplement if it shall have timely made such amendment or supplement available on “XXXXX.”
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities pursuant to the Shelf Registration StatementStatement and any other expenses incurred by it that are not Registration Expenses.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SECSEC or become effective automatically upon filing; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become been effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event (1) the Exchange Offer is not completed consummated and (2) the Shelf Registration Statement is not declared effective effective, in each case, on or prior to 210 days from the 360th day following the Closing DateDate (or if such 360th day is not a Business Day, the next succeeding Business Day), or in the case of a Shelf Registration Statement, it thereafter ceases to be effective or usable except as provided in Section 3(q) below in connection with resales or exchanges of the Exchange Securities during the Shelf Registration Period (each such event referred to in clauses (1) and (2), a “Registration Default”), then with respect to the first 90-day period immediately following the occurrence of such Registration Default, the interest rate on the Registrable Securities will be increased by 0.25% per annum until and will increase by an additional 0.25% per annum on the Exchange Offer is completed principal amount of Securities with respect to each subsequent 90-day period, up to maximum amount of additional interest of 1.0% per annum (“Additional Interest”). Additional Interest, if any, will be paid by the Company or the Shelf Registration Statement is declared effective by Guarantors on each interest payment date to Holders in the SECsame manner as payments of interest on the Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its their respective obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's ’s and the Guarantors' ’ obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed filed, no later than 60 days after the Closing Date, an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable its best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the Prospectus related exchange offer Prospectus to the Exchange Offer and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interestinterest in accordance with its terms, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable its best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date December 3, 1997 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agents a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agents in connection with any offering or sale by them of Registrable SecuritiesSecurities which they acquired from the Company, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and use its best efforts have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers Placement Agents after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially reasonable its best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) under the 1933 Act with respect to the all Registrable Securities covered by the Shelf Registration Statement or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the -------- ------- offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that the Exchange Offer is not completed and consummated and, if a Shelf Registration Statement is required hereby, the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing DateDecember 3, 1997, the interest rate on the Securities (and the Exchange Securities) will be increased increase by 0.25.5% per annum until the date the Exchange Offer is completed consummated or the a Shelf Registration Statement is declared effective by the SECeffective.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable its best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrete in value until April 15, 2003 and thereafter will accrue interestinterest in accordance with the terms of the Securities, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security Securities exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount at maturity of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security Securities equal in principal amount at maturity to the principal amount at maturity of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable its best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents, if requested by the Placement Agents, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date September 12, 1998 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agents a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers a Placement Agent in connection with any offering or sale by such Placement Agent of Registrable SecuritiesSecurities held by them that constitute an unsold allotment, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed as soon as practicable after such determination, date or notice receipt of such opinion of counsel is given to by the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities (other than Registrable Securities of any Holder that is or becomes an affiliate (as defined in the 1933 Act and the rules and regulations promulgated thereunder) of the Company) and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, in addition to its obligations under the foregoing Section 2(a), the Company and the Guarantors shall use their commercially reasonable its best efforts to file as soon as practicable after delivery of such opinion of counsel and use its best efforts to have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers such Placement Agent as part of its original unsold allotment after completion of the Exchange Offer. The Placement Agents shall sell out their unsold allotments before making sales of any other Registrable Securities and shall notify the Company and upon the Guarantors agree sale of all of their unsold allotments. The Company agrees to use their commercially reasonable its best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the all Registrable Securities covered by the Shelf Registration Statement or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that the Exchange Offer is not completed consummated and the Shelf Registration Statement is not declared effective on or prior to 210 days from September 12, 1998, interest (in addition to the Closing Dateaccrual of original issue discount during the period ending April 15, 2003 and in addition to the interest rate otherwise due on the Securities (and the Exchange Securities) after such date) will be increased by 0.25accrue, at a rate of 0.5% per annum of the Accreted Value of the Securities on the preceding Semi-Annual Accrual Date, from September 12, 1998 and be payable in cash, semi-annually in arrears, commencing October 15, 1998 until (i) the Exchange Offer is completed or the consummated, (ii) a Shelf Registration Statement is declared effective by or (iii) the SECdate that the Securities become freely tradeable, without registration under the 1933 Act; provided that, upon the request of any Holder of the Securities, the Company will deliver to such Holder certificates evidencing such Holder's Securities without the legends restricting the transfer thereof.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Nextel International Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, Amtran and the Company and the Guarantors shall (i) use their commercially reasonable best efforts to cause to be filed file with the SEC within 240 days after the original issuance date of the Initial Certificates, an Exchange Offer Registration Statement covering the offer by Amtran and the Company and the Guarantors to the Holders to exchange all of the Registrable Securities Certificates for Exchange Securities and Certificates, (ii) use their reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective by the SEC within 300 days after the original issuance date of the Initial Certificates, (iii) use their reasonable best efforts to have such Exchange Offer Registration Statement remain continuously effective until the closing of the Exchange OfferOffer and (iv) use their reasonable best efforts to consummate the Exchange Offer within 330 days after the original issuance date of the Initial Certificates. The Company Amtran and the Guarantors Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company Amtran and the Guarantors Company shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities Certificates validly tendered 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"; the last business day on which the exchange is open is referred to herein as the "last Exchange Date");
(iii) that any Registrable Security Certificate included in the Exchange Offer but not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security Certificate exchanged pursuant to the Exchange Offer will be required to surrender such Registrable SecurityCertificate, together with the enclosed letters of transmittaltransmittal accompanying the Exchange Offer, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than tendered Registrable Certificates at any time prior to the close of business on the last Exchange Date, by 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 Registrable Securities Certificates delivered for exchange and a statement that such Holder is withdrawing his election with respect to have all or a portion of such Securities Registrable Certificates originally elected to be exchanged. As soon as practicable after the last Exchange Date, Amtran and the Company shall, or shall direct the Trustees to and the Guarantors Trustees shall:
(i) accept for exchange Registrable Securities Certificates or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer; and;
(ii) deliver, or cause to be delivered, to the Trustee Trustees for cancellation all Registrable Securities Certificates or portions thereof so accepted for exchange by Amtran and the Company and the Guarantors; and
(iii) issue, and cause the Trustee Trustees to promptly authenticate and mail to each Holder, an Exchange Security Certificate equal in principal amount to the principal amount of the Registrable Securities Certificates surrendered by such Holder. The Company Amtran and the Guarantors Company shall use their commercially reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and Prior to the Guarantors shall inform the Initial Purchasers effectiveness of the names and addresses of the Holders to whom the Exchange Offer is madeRegistration Statement, Amtran and the Initial Purchasers Company shall have provide a supplemental letter to the right, subject to applicable law, to contact such Holders SEC (A) stating that Amtran and otherwise facilitate the tender of Registrable Securities in Company are conducting the Exchange OfferOffer in reliance on the position of the SEC in Exxon Capital Holdings Corporation (pub. Avail. May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc. (pub. Avail. June 5, 1991) and related SEC "no-action" letters; and (B) making any required representations to the SEC as contemplated by such "no-action" letters.
(b) In the event that (i) the Company and the Guarantors determine reasonably determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated completed as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 consummated within 330 days from after the Closing Date original issuance date of the Initial Certificates or the Exchange Offer Registration Statement is not declared effective within 300 days after the original issuance date of the Initial Certificates; or (iii) the any Holder of Registrable Certificates is not eligible to participate in an Exchange Offer has been completed Registration, Amtran and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company Amtran and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Certificates in accordance with the method or methods of distribution elected by such Holders and as described in the Registration Statement and to have such Shelf Registration Statement declared effective by the SECSEC as soon as practicable after such Registration Statement is filed. In the event Amtran and the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective and in compliance with applicable law until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities Certificates or such shorter period that will terminate when all of the Registrable Securities Certificates covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company Amtran and the Guarantors Company further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by Amtran and the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company Amtran and the Guarantors Company agree to furnish to the Holders of Registrable Securities Certificates copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder The Company shall pay all reimburse any Registration Expenses incurred, assumed and paid by any Person (which shall not include underwriting discounts and commissions and transfer taxes, if any, relating ).
(d) (i) Amtran and the Company will be deemed not to have used their reasonable best efforts to cause the sale Exchange Offer Registration Statement or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement, as the case may be, to become, or to remain, effective during the requisite period if either of Amtran or the Company voluntarily takes any action that would result in any such Registration Statement not being declared effective or in the Holders of Registrable Certificates covered thereby not being able to exchange or offer and sell such Registrable Certificates during that period, unless (A) such action is required by applicable law or (B) such action is taken by Amtran or the Company to postpone the filing or effectiveness (or suspend the effectiveness) of any Registration Statement if (1) Amtran or the Company would be required to disclose in such Registration Statement a material business situation, transaction or negotiation affecting Amtran or the Company not otherwise then required by law to be publicly disclosed, and (2) in the good faith judgment of the board of directors of Amtran or the Company, such disclosure would materially and adversely affect such business situation, transaction or negotiation, so long as Amtran and the Company promptly comply with the requirements of Section 3(i) hereof, Section 2(a)(i) hereof or Section 2(a)(ii) hereof, as applicable.
(dii) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities Certificates pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities Certificates pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed consummated and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Date330th day after the original issuance date of the Initial Certificates, the interest rate on the Securities Registrable Certificates will be increased by 0.250.50% per annum until from and including such 330th day to, but excluding, the earlier of (i) the date on which the Exchange Offer is completed consummated or (ii) the date on which a Shelf Registration Statement is declared effective by the SEC, which additional interest shall be paid through a combination of an increase in the interest rate per annum borne by the Equipment Notes of 0.50% and, if applicable, an increase in the interest rate per annum payable on the Deposits of 0.50% pursuant to the Deposit Agreements. In the event (i) that the Shelf Registration Statement ceases to be effective at any time during the period during which it should remain continuously effective as specified by Section 2(b) hereof, (ii) the filing of any Registration Statement is postponed under circumstances contemplated by Section 2(d)(i)(B) or (iii) at the request of the Company or Amtran, the effectiveness of any filed Registration Statement is postponed under circumstances contemplated by Section 2(d)(i)(B), for more than 60 days in the aggregate, whether or not consecutive, during any 12 month period, the interest rate payable in respect of the Registrable Certificates shall be increased by 0.50% per annum from the 61st day of the applicable 12 month period such Registration Statement ceases to be effective, or the filing or effectiveness of the Registration Statement is postponed, as the case may be, until such time as the Shelf Registration Statement is filed or becomes effective, as the case may be, (or, if earlier, the end of the period specified by Section 2(b) hereof), which additional interest shall be paid through a combination of an increase in the interest rate per annum borne by the Equipment Notes of 0.50% and, if applicable, an increase in the interest rate per annum payable on the Deposits of 0.50% pursuant to the Deposit Agreements.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff staff of the SEC, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities (the “Exchange Offer”) and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, together with 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) Guarantors and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff staff of the SEC. The Upon the Placement Agents’ request, the Company and the Guarantors shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 days from the Closing Date consummated on or prior to June 30, 2006 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agents a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agents in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities, or the offer and sale of the Registrable Securities by the Placement Agents, as the case may be, and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii2(b)(iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers Placement Agents after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the later of (A) in the opinion of counsel for the Placement Agents, no Prospectus must be delivered by such Placement Agents in connection with the offering and sale of such registrable securities and (B) the earlier of (1) the expiration of the time period referred to in Rule 144(k) with respect to after the Registrable Securities Closing Date or such shorter period that will terminate when (2) all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Upon request, the Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for For shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed consummated and the a Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing DateJune 30, 2006, the interest rate on the Securities will be increased by 0.25% per annum and, the amount of such additional interest will increase by an additional 0.25% for each subsequent 90-day period, up to a maximum of 1.0% over the interest rate on the Securities as determined in accordance with Section 4.1 of the Indenture, until the Exchange Offer is completed consummated or the a Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor and the Guarantors to comply with its their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Company's ’s and the Guarantors' ’ obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Aventine Renewable Energy Holdings Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SECStaff, the Company Issuers and the Guarantors shall use their commercially reasonable efforts to cause to be filed (i) file an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors Issuers to the Holders to exchange all of the Registrable Securities for Exchange Securities on or prior to October 31, 2010 (the “Target Filing Date”) and (ii) use their reasonable best efforts to have the Exchange Offer Registration Statement declared effective by the SEC as promptly as practicable after such Registration Statement remain effective until the closing of the Exchange Offerhas been filed and in no event later than December 15, 2010. The Company and the Guarantors Issuers shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable efforts to have the Exchange Offer completed not later than 210 days after the Closing DateSEC. The Company and the Guarantors Issuers shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; provided, however, that, if any of the Registrable Securities are in book-entry form, such Prospectus and accompanying documents shall also specify how the surrender is to be effected in accordance with applicable book-entry procedures; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors Issuers shall:
(i) 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 Issuers and the Guarantors; and
(iii) Guarantors and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder; provided that if any of the Registrable Securities are in book-entry form, the Issuers shall, in co-operation with the Trustee, effect the exchange of Registrable Securities in accordance with applicable book-entry procedures. The Company Issuers and the Guarantors shall use their commercially reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SECStaff. The Company and the Guarantors Issuers shall use their reasonable efforts to inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company Issuers and the Guarantors determine that are not permitted to consummate the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not permitted by applicable law or any applicable interpretation of the Staff, (ii) for any other reason completed by 210 days from reason, the Closing Date Exchange Offer is not consummated on or before January 31, 2011, or (iii) any Beneficial Owner of Registrable Securities notifies the Issuers that (A) it is prohibited by law or SEC policy from participating in the Exchange Offer, (B) it may not resell the Exchange Securities acquired by it in the Exchange Offer has been completed to the public without delivering a prospectus and the prospectus contained in the opinion of counsel for the Initial Purchasers a Exchange Offer Registration Statement must be filed is not appropriate or available for such resales; or (C) it is a broker-dealer and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, owns Securities acquired directly from the Company or an affiliate of the Company, then the Issuers and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable file after such determination, determination date or notice of such opinion of counsel is given to the Company and the GuarantorsIssuers, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such use their reasonable best efforts to cause the Shelf Registration Statement to be declared effective by the SECSEC on or prior to 30 days after the obligation to file such shelf registration statement arises, but in no event prior to October 31, 2010. In the event the Company and the Guarantors Issuers are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iiiiii)(B) of the preceding sentence, the Company Issuers and the Guarantors shall use their commercially reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company Issuers and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration earlier of (i) two years from the period referred to in Rule 144(kClosing Date and (ii) with respect to the date on which all Registrable Securities or such shorter period that will terminate when all registered thereunder are disposed of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statementin accordance therewith. The Company Issuers and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company Issuers and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors Issuers agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors Issuers shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event (1) the Issuers and the Guarantors fail to file any of the registration statements required by this Agreement on or before the Target Filing Date; (2) the Issuers and the Guarantors fail to have the Exchange Offer is not completed Registration Statement declared effective by the SEC on or prior to December 15, 2010; (3) the Issuers and the Guarantors fail to consummate the Exchange Offer on or before January 31, 2011; or (4) the Shelf Registration Statement or the Exchange Offer Registration Statement is not declared effective on but thereafter ceases to be effective or prior usable in connection with resales or exchanges of Registrable Securities during the periods specified in this Agreement (each such event referred to 210 days from in clause (1) through (4) above, a “Registration Default”), then with respect to the Closing Datefirst 90-day period immediately following the occurrence of the first Registration Default, the interest rate on the Securities will be increased by 0.250.50% per annum on the principal amount of Securities held by such Holder. The amount of additional interest will increase by an additional 0.50% per annum on the principal amount of Securities with respect to each 90-day period until all Registration Defaults have been cured, up to maximum amount of additional interest for all Registration Defaults of 1.5% per annum. All accrued additional interest will be paid by the Exchange Offer is completed Issuers or the Shelf Guarantors on each interest payment date to the Holder of a global note by wire transfer of immediately available funds or by federal funds check and to Holders of certificated notes by wire transfer to the accounts specified by them or by mailing checks to their registered addresses if no such accounts have been specified. Following the cure of all Registration Statement is declared effective by Defaults, the SECaccrual of additional interest will cease.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company Issuers and the Guarantors acknowledge that any failure by the Company any Issuer or any Guarantor to comply with its their respective obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's obligations of the Issuers and the Guarantors' obligations Guarantors under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (American Fiber Systems, Inc.)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff staff of the SEC, the Company and the Subsidiary Guarantors shall use their commercially reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Subsidiary Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Subsidiary Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable best efforts to have the Exchange Offer completed consummated not later than 210 days six months after the Closing Date. The Company and the Subsidiary Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his its election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Subsidiary Guarantors shall:
(i) accept for exchange all 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Subsidiary Guarantors shall use their commercially reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents, if requested by the Placement Agents, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Subsidiary Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date October 15, 1998 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agents a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agents in connection with any offering or sale of Registrable Securities, the Company and the Subsidiary Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Subsidiary Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Subsidiary Guarantors shall use their commercially reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers Placement Agents after completion of the Exchange Offer. The Company and the Subsidiary Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Subsidiary Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Subsidiary Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed consummated and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing DateOctober 15, 1998, the interest rate on the Securities will be increased by 0.250.5% per annum until the Exchange Offer is completed consummated or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Company and the Subsidiary Guarantors acknowledge that any failure by the Company or any Guarantor and the Subsidiary Guarantors to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Subsidiary Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Foodmaker International Franchising Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable xxxxxxxxle law or applicable interpretation of the Staff staff of the SEC, the Company and the Guarantors shall use their commercially reasonable efforts to (1) cause to be filed an Exchange Offer Registration Statement within 90 days following the Closing Date covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for an equal aggregate principal amount of Exchange Securities and (2) use its reasonable best efforts to cause such Exchange Offer Registration Statement to become effective within 210 days following the Closing Date. The Company shall use its reasonable best efforts to have such the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially its reasonable best efforts to have the Exchange Offer completed consummated not later than 210 days 30 Business Days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days Business Days from the date such notice is mailed) (the "Exchange DatesEXCHANGE DATES");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Registrable Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(iA) accept for exchange Registrable Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer; and
(iiB) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in aggregate principal amount to the aggregate principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially its reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. If, during the period the Exchange Offer Registration Statement is effective, an event occurs which makes any statement made in such Exchange Offer Registration Statement or the related Prospectus untrue in any material respect or which requires the making of any changes in such Exchange Offer Registration Statement in order to make the statements therein not misleading or in such Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Company shall use its reasonable best efforts to prepare and file with the SEC a supplement or post-effective amendment to the Exchange Offer Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company agrees to notify the Holders to suspend the exchange of the Registrable Securities as promptly as practicable after the occurrence of such an event, and the Holders hereby agree to suspend such exchange until the Company has amended or supplemented the Prospectus to correct such misstatement or omission.
(b) In the event that If (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 consummated within 260 days from following the Closing Date or (iii) the Exchange Offer has been completed and in the written opinion of counsel for the Initial Purchasers Holders a Shelf Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers any Holder in connection with any offering reoffering or sale resale of Registrable Securities, the Company and shall (x) file with the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after SEC within 75 days following such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may be, a Shelf Registration Statement providing for the sale resale by the Holders (other than those who fail to comply with the paragraph immediately following clause (p) of Section 3) of all of the their Registrable Securities and (y) use its reasonable best efforts to have cause such Shelf Registration Statement declared to become effective by within 60 days of the SECfiling of such Shelf Registration Statement. In the event If the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers reoffers and sales resales of Registrable Securities held by the Initial Purchasers after completion of Holders who must deliver the Exchange Offerrelated Prospectus. The Company and the Guarantors agree agrees to use their commercially its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) of the 1933 Act with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration StatementStatement or cease to be Registrable Securities within the meaning of this Agreement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts discounts, if any, and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the a Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume.
(e) The Company and the Initial Purchasers agree that the Holders will suffer damages if the Company fails to fulfill its obligations under Section 2(a) or Section 2(b) hereof and that it would not be feasible to ascertain the extent of such damages with precision. In Accordingly, the event Company agrees that if:
(i) the Exchange Offer Registration Statement is not completed and filed with the Shelf SEC on or prior to the 90th day following the Closing Date,
(ii) the Exchange Offer Registration Statement is not declared effective on or prior to 210 days from the 210th day following the Closing Date,
(iii) the Exchange Offer is not completed on or prior to the 260th day following the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or or
(iv) the Shelf Registration Statement is required to be filed but is not filed or declared effective by within the SEC.
(e) Without limiting the remedies available time period set forth herein or is declared effective but thereafter ceases to be effective or usable prior to the Initial Purchasers and expiration of the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor period referred to comply in Rule 144(k) with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury respect to the Initial Purchasers Registrable Securities other than after the Registrable Securities have been disposed of under the Shelf Registration Statement or cease to be Registrable Securities, without being succeeded within two Business Days by a post-effective amendment which cures the Holders for which there failure and that is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.itself immediately declared effective,
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff staff of the SEC, the Company and the Guarantors shall (A) use their commercially its reasonable best efforts to cause to be filed prepare and, not later than 180 days after the Closing Date, file with the SEC an Exchange Offer Registration Statement covering on an appropriate form under the offer by the Company 1933 Act with respect to a proposed Exchange Offer and the Guarantors issuance and delivery to the Holders to Holders, in exchange for all of the Registrable Securities for Securities, of a like principal amount of Exchange Securities and Securities, (B) use its reasonable best efforts to have such cause the Exchange Offer Registration Statement remain to be declared effective under the 1933 Act not later than 210 days after the Closing Date (the “Effectiveness Deadline”), (C) use its reasonable best efforts to keep the Exchange Offer Registration Statement effective until the closing of the Exchange OfferOffer and (D) use its reasonable best efforts to cause the Exchange Offer to be consummated as promptly as practicable, but in any event not later than the date that is 30 Business Days after the Effectiveness Deadline. The Company and the Guarantors shall use its reasonable best efforts to commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC SEC, and use their commercially reasonable efforts to have the Exchange Offer completed not later than 210 days after the Closing Date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not withdrawn will be accepted for exchange;
(ii) the dates Expiration Date of acceptance for exchange the Exchange Offer (which shall be a period of at least 20 business days Business Days from the date such notice is mailed) (each day from and including the "date of such mailing through and including the Expiration Date being hereinafter called an “Exchange Dates"Date”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain thereafter be entitled to receive any Additional Interest or be entitled to any registration rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, together with the enclosed letters letter of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice exchange offer Prospectus or the accompanying documents prior to the close of business time the Exchange Offer terminates (which shall not be earlier than 5:00 p.m., New York City time) on the last Exchange Expiration Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable efforts to complete time the 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 the Exchange Offer. The Exchange Offer terminates (which shall not be subject to any conditions, other earlier than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 days from the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.5:00
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially its reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. Such Registration Statement may include the Company’s 7 3/8% Senior Notes due 2013. The Company will file an Exchange Offer Registration Statement with the SEC on or prior to 60 days after the Closing Date and will use its reasonable best efforts to have the Guarantors Exchange Offer Registration Statement declared effective by the SEC on or prior to 240 days after the Closing Date. The Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially its reasonable best efforts to have the Exchange Offer completed consummated not later than 210 30 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Registrable Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially its reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff staff of the SEC, (ii) the Exchange Offer is not for any other reason completed declared effective by 210 the SEC on or prior to 240 days from after the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. If the Company is obligated to file a Shelf Registration Statement pursuant to this Section 2(b), the Company will file the Shelf Registration Statement with the SEC on or prior to 60 days after the Closing Date and will use its reasonable best efforts to cause the Shelf Registration to be declared effective by the SEC on or prior to 270 days after such obligation arises, or otherwise in accordance with the terms of this Agreement. The Company and the Guarantors agree agrees to use their commercially its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) after the Closing Date, with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company will, in the event of such a shelf registration, provide to each Holder copies of the prospectus, notify each Holder when the Shelf Registration Statement for the Notes has become effective and take certain other actions as are required to permit resales of the Guarantors Notes. The Company further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event (1) the Exchange Offer is not completed and Company fails to file any of the Shelf Registration Statement registration statements required by this Agreement on or before the date specified for such filing; or (2) any of such registration statements is not declared effective by the SEC on or prior to 210 days from the Closing date specified for such effectiveness (the “Effectiveness Target Date, ”); or (3) the interest rate on the Securities will be increased by 0.25% per annum until Company fails to consummate the Exchange Offer is completed within 30 business days of the Effectiveness Target Date with respect to the Exchange Offer Registration Statement; or (4) the Shelf Registration Statement is declared effective but thereafter ceases to be effective or usable in connection with resales or exchanges of Notes during the periods specified in this Agreement (each such event referred to in clauses (1) through (4) above, a “Registration Default”), then the Company will pay Additional Interest (in addition to interest which is otherwise due on the Notes) to each Holder of Notes, with respect to the first 90-day period immediately following the occurrence of the first Registration Default, in an amount equal to 0.25% per annum of the principal amount of Notes held by such Holder. The amount of Additional Interest (in addition to interest which is otherwise due on the SECNotes) will increase by an additional 0.25% per annum of the principal amount of such Notes with respect to each subsequent 90-day period until all Registration Defaults have been cured, up to a maximum amount of Additional Interest (in addition to interest which is otherwise due on the Notes) for all Registration Defaults of 1.0% per annum of the principal amount of such Notes.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure All Additional Interest paid in connection with a Registration Default will be paid by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to cash semi-annually on the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.regular interest payment dates described
Appears in 1 contract
Samples: Registration Rights Agreement (E Trade Financial Corp)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff staff of the SEC, the Company and the Guarantors shall (A) use their commercially its reasonable best efforts to cause to be filed prepare and, as soon as practicable but not later than 120 days after the Closing Date, file with the SEC an Exchange Offer Registration Statement covering on an appropriate form under the offer by the Company 1933 Act with respect to a proposed Exchange Offer and the Guarantors issuance and delivery to the Holders to Holders, in exchange for all of the Registrable Securities for Securities, of a like principal amount of Exchange Securities and Securities, (B) use its reasonable best efforts to have such cause the Exchange Offer Registration Statement remain to be declared effective under the 1933 Act not later than 180 days after the Closing Date (the “Effectiveness Deadline”), (C) use its reasonable best efforts to keep the Exchange Offer Registration Statement effective until the closing of the Exchange OfferOffer and (D) use its reasonable best efforts to cause the Exchange Offer to be consummated as promptly as practicable, but in any event not later than the date that is 30 Business Days after the Effectiveness Deadline. The Company and the Guarantors shall use its reasonable best efforts to commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC SEC, and use their commercially reasonable efforts to have the Exchange Offer completed not later than 210 days after the Closing Date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not withdrawn will be accepted for exchange;
(ii) the dates Expiration Date of acceptance for exchange the Exchange Offer (which shall be a period of at least 20 business days Business Days from the date such notice is mailed) (each day from and including the "date of such mailing through and including the Expiration Date being hereinafter called an “Exchange Dates"Date”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain thereafter be entitled to receive any Additional Interest or be entitled to any registration rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, together with the enclosed letters letter of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice exchange offer Prospectus or the accompanying documents prior to the close of business time the Exchange Offer terminates (which shall not be earlier than 5:00 p.m., New York City time) on the last Exchange Expiration Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable efforts to complete time the 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 the Exchange Offer. The Exchange Offer terminates (which shall not be subject to any conditions, other earlier than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 days from the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.5:00
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicablx xxx xx applicable interpretation of the Staff staff of the SEC, the Company and the Guarantors shall use their commercially reasonable efforts to (1) cause to be filed an Exchange Offer Registration Statement within 90 days following the Closing Date covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for an equal aggregate principal amount of Exchange Securities and (2) use its reasonable best efforts to cause such Exchange Offer Registration Statement to become effective within 210 days following the Closing Date. The Company shall use its reasonable best efforts to have such the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially its reasonable best efforts to have the Exchange Offer completed consummated not later than 210 days 30 Business Days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days Business Days from the date such notice is mailed) (the "Exchange DatesEXCHANGE DATES");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Registrable Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(iA) accept for exchange Registrable Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer; and
(iiB) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in aggregate principal amount to the aggregate principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially its reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. If, during the period the Exchange Offer Registration Statement is effective, an event occurs which makes any statement made in such Exchange Offer Registration Statement or the related Prospectus untrue in any material respect or which requires the making of any changes in such Exchange Offer Registration Statement in order to make the statements therein not misleading or in such Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Company shall use its reasonable best efforts to prepare and file with the SEC a supplement or post-effective amendment to the Exchange Offer Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company agrees to notify the Holders to suspend the exchange of the Registrable Securities as promptly as practicable after the occurrence of such an event, and the Holders hereby agree to suspend such exchange until the Company has amended or supplemented the Prospectus to correct such misstatement or omission.
(b) In the event that If (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 consummated within 260 days from following the Closing Date or (iii) the Exchange Offer has been completed and in the written opinion of counsel for the Initial Purchasers Holders a Shelf Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers any Holder in connection with any offering reoffering or sale resale of Registrable Securities, the Company and shall (x) file with the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after SEC within 75 days following such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may be, a Shelf Registration Statement providing for the sale resale by the Holders (other than those who fail to comply with the paragraph immediately following clause (p) of Section 3) of all of the their Registrable Securities and (y) use its reasonable best efforts to have cause such Shelf Registration Statement declared to become effective by within 60 days of the SECfiling of such Shelf Registration Statement. In the event If the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers reoffers and sales resales of Registrable Securities held by the Initial Purchasers after completion of Holders who must deliver the Exchange Offerrelated Prospectus. The Company and the Guarantors agree agrees to use their commercially its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) of the 1933 Act with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration StatementStatement or cease to be Registrable Securities within the meaning of this Agreement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts discounts, if any, and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the a Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume.
(e) The Company and the Initial Purchasers agree that the Holders will suffer damages if the Company fails to fulfill its obligations under Section 2(a) or Section 2(b) hereof and that it would not be feasible to ascertain the extent of such damages with precision. In Accordingly, the event Company agrees that if
(i) the Exchange Offer Registration Statement is not completed and filed with the Shelf SEC on or prior to the 90th day following the Closing Date,
(ii) the Exchange Offer Registration Statement is not declared effective on or prior to 210 days from the 210th day following the Closing Date,
(iii) the Exchange Offer is not completed on or prior to the 260th day following the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or or
(iv) the Shelf Registration Statement is required to be filed but is not filed or declared effective by within the SEC.
(e) Without limiting the remedies available time period set forth herein or is declared effective but thereafter ceases to be effective or usable prior to the Initial Purchasers and expiration of the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor period referred to comply in Rule 144(k) with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury respect to the Initial Purchasers Registrable Securities other than after the Registrable Securities have been disposed of under the Shelf Registration Statement or cease to be Registrable Securities, without being succeeded within two Business Days by a post-effective amendment which cures the Holders for which there failure and that is no adequate remedy at lawitself immediately declared effective (each such event referred to in clauses (i) through (iv) a "REGISTRATION DEFAULT"), that it will not be possible to measure liquidated damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.("
Appears in 1 contract
Samples: Registration Rights Agreement (El Paso Natural Gas Co)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SECStaff, the Company Issuers and the Guarantors shall use their commercially reasonable efforts to cause to be filed (i) file an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors Issuers to the Holders to exchange all of the Registrable Securities for Exchange Securities on or prior to October 31, 2010 (the “Target Filing Date”) and (ii) use their reasonable best efforts to have the Exchange Offer Registration Statement declared effective by the SEC as promptly as practicable after such Registration Statement remain effective until has been filed and in no event later than December 15, 2010; provided, however, that an Exchange Offer Registration Statement filed or made pursuant to this Section 2 shall not cover the closing of Affiliate Securities and no Exchange Offer shall be made for the Exchange OfferAffiliate Securities. The Company and the Guarantors Issuers shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable efforts to have the Exchange Offer completed not later than 210 days after the Closing DateSEC. The Company and the Guarantors Issuers shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; provided, however, that, if any of the Registrable Securities are in book-entry form, such Prospectus and accompanying documents shall also specify how the surrender is to be effected in accordance with applicable book-entry procedures; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors Issuers shall:
(i) 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 Issuers and the Guarantors; and
(iii) Guarantors and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder; provided that if any of the Registrable Securities are in book-entry form, the Issuers shall, in co-operation with the Trustee, effect the exchange of Registrable Securities in accordance with applicable book-entry procedures. The Company Issuers and the Guarantors shall use their commercially reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SECStaff. The Company and the Guarantors Issuers shall use their reasonable efforts to inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company Issuers and the Guarantors determine that are not permitted to consummate the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not permitted by applicable law or any applicable interpretation of the Staff, (ii) for any other reason completed by 210 days from reason, the Closing Date Exchange Offer is not consummated on or before January 31, 2011, or (iii) any Beneficial Owner of Registrable Securities notifies the Issuers that (A) it is prohibited by law or SEC policy from participating in the Exchange Offer, (B) it may not resell the Exchange Securities acquired by it in the Exchange Offer has been completed to the public without delivering a prospectus and the prospectus contained in the opinion of counsel for the Initial Purchasers a Exchange Offer Registration Statement must be filed is not appropriate or available for such resales; or (C) it is a broker-dealer and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, owns Securities acquired directly from the Company or an affiliate of the Company, then the Issuers and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable file after such determination, determination date or notice of such opinion of counsel is given to the Company and the GuarantorsIssuers, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such use their reasonable best efforts to cause the Shelf Registration Statement to be declared effective by the SECSEC on or prior to 30 days after the obligation to file such shelf registration statement arises, but in no event prior to October 31, 2010. In the event the Company and the Guarantors Issuers are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iiiiii)(B) of the preceding sentence, the Company Issuers and the Guarantors shall use their commercially reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company Issuers and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration earlier of (i) two years from the period referred to in Rule 144(kClosing Date and (ii) with respect to the date on which all Registrable Securities or such shorter period that will terminate when all registered thereunder are disposed of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statementin accordance therewith. The Company Issuers and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company Issuers and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors Issuers agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors Issuers shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event (1) the Issuers and the Guarantors fail to file any of the registration statements required by this Agreement on or before the Target Filing Date; (2) the Issuers and the Guarantors fail to have the Exchange Offer is not completed Registration Statement declared effective by the SEC on or prior to December 15, 2010; (3) the Issuers and the Guarantors fail to consummate the Exchange Offer on or before January 31, 2011; or (4) the Shelf Registration Statement or the Exchange Offer Registration Statement is not declared effective on but thereafter ceases to be effective or prior usable in connection with resales or exchanges of Registrable Securities during the periods specified in this Agreement (each such event referred to 210 days from in clause (1) through (4) above, a “Registration Default”), then with respect to the Closing Datefirst 90-day period immediately following the occurrence of the first Registration Default, the interest rate on the Securities will be increased by 0.250.50% per annum on the principal amount of Securities held by such Holder; provided, however, that no additional interest shall be paid or payable to holders of Affiliate Securities. The amount of additional interest will increase by an additional 0.50% per annum on the principal amount of Securities with respect to each 90-day period until all Registration Defaults have been cured, up to maximum amount of additional interest for all Registration Defaults of 1.5% per annum. All accrued additional interest will be paid by the Exchange Offer is completed Issuers or the Shelf Guarantors on each interest payment date to the Holder of a global note by wire transfer of immediately available funds or by federal funds check and to Holders of certificated notes by wire transfer to the accounts specified by them or by mailing checks to their registered addresses if no such accounts have been specified. Following the cure of all Registration Statement is declared effective by Defaults, the SECaccrual of additional interest will cease.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company Issuers and the Guarantors acknowledge that any failure by the Company any Issuer or any Guarantor to comply with its their respective obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's obligations of the Issuers and the Guarantors' obligations Guarantors under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (American Fiber Systems, Inc.)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff staff of the SEC, the Company and shall prepare and, not later than 180 days following the Guarantors Closing Date (or if such 180th day is not a Business Day, the next succeeding Business Day), shall use their commercially its reasonable efforts to cause to be filed an file with the SEC the Exchange Offer Registration Statement covering the offer by the Company and the Guarantors with respect to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after use its reasonable efforts to (i) cause the Exchange Offer Registration Statement has been declared to become effective by under the SEC 1933 Act within 270 days of the Closing Date (or if such 270th day is not a Business Day, the next succeeding Business Day) and use their commercially reasonable efforts to have (ii) consummate the Exchange Offer completed not later than 210 within 310 days after of the Closing DateDate (or if such 310th day is not a Business Day, the next succeeding Business Day). The Upon the effectiveness of the Exchange Offer Registration Statement, the Company and the Guarantors shall promptly commence the Exchange Offer by mailing delivering the related exchange offer Prospectus and accompanying documents documents, if any, to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of expiration date for acceptance for exchange (which shall be a period of date at least 20 business days Business Days from the date such notice Prospectus is maileddelivered, and which may be extended by the Company from time to time pursuant to the procedures set forth in such Prospectus) (the "Exchange DatesEXPIRATION Date");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, together with the enclosed letters of transmittal, if any, to the institution and at the address specified in the notice prior to the close of business on the last Exchange Expiration Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Expiration Date, by sending to the institution and at the address specified in the such Prospectus a written or facsimile notice a telegram, telex, facsimile transmission or letter of withdrawal setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his its election to have such Securities exchanged. As soon as reasonably practicable after the last Exchange Expiration Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail deliver to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially its reasonable efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders agrees (x) to whom include in the Exchange Offer Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is made, a Participating Broker-Dealer and (y) to use reasonable efforts to keep such Exchange Offer Registration Statement effective for a period of 90 days after the Initial Purchasers shall have Expiration Date (as such period may be extended pursuant to the right, subject to applicable law, to contact such Holders and otherwise facilitate penultimate paragraph of Section 3 of this Agreement) (the tender of Registrable Securities in the Exchange Offer"RESALE Period").
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable within a reasonable period of time after the Exchange Expiration Date because it would violate applicable law or the applicable interpretations of the Staff staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 consummated within 310 days from of the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Purchasers, in a form reasonably satisfactory to the Company, a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially its reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and shall use its reasonable efforts to have such Shelf Registration Statement declared effective by the SEC, provided, that, in no event shall the Company be required to file or cause to be declared effective such Shelf Registration Statement before the date on which it is required to file or cause to be declared effective, as applicable, the Exchange Offer Registration Statement pursuant to Section 2(a). In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company shall file and the Guarantors shall use their commercially its reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially its reasonable efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or Statement, by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially its reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicablereasonably practicable thereafter. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof).
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable efforts to (i) cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and within 210 days after the Closing Date (or, if such 210th day is not a Business Day, the next succeeding Business Day), (ii) use its best efforts to have such Registration Statement declared effective within 330 days after the Closing Date (or, if such 330th day is not a Business Day, the next succeeding Business Day) and remain effective until the closing of the Exchange Offer. The Company Offer and the Guarantors shall commence (iii) use its best efforts to Consummate the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable efforts to have the Exchange Offer completed not later than 210 360 days after following the Closing Date (or, if such 360th day is not a Business Day, the next succeeding Business Day)(the “Exchange Date. ”).
(i) The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder statingHolder, through The Depository Trust Company or otherwise, stating in such Prospectus or accompanying documents, in addition to such other disclosures as are required by applicable law:
(iA) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not withdrawn will be accepted for exchange;
(iiB) 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 “Acceptance Dates"”);
(iiiC) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(ivD) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Acceptance Date; and
(vE) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Acceptance Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. .
(ii) As soon as practicable after the last Exchange Acceptance Date, the Company and the Guarantors shall:
(iA) accept for exchange Registrable Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer; and
(iiB) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. .
(iii) The Company and the Guarantors shall use their commercially reasonable its best efforts to complete the Exchange Offer as provided above on or prior to the Exchange Date and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, conditions other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(iv) If the Company effects the Exchange Offer, the Company shall be entitled to close the Exchange Offer twenty (20) business days after such commencement (provided that the Company has accepted all the Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Exchange Offer).
(v) Each Holder participating in the Exchange Offer shall be required to represent to the Company in writing that at the time of the consummation of the Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any Person to participate in the distribution (within the meaning of the 0000 Xxx) of the Exchange Securities and (iii) such Holder is not an affiliate of either the Company within the meaning of Rule 405 under the 1933 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 Exchange Securities and (v) if such Holder is a broker dealer, that it will receive Exchange 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 be required to acknowledge that it will deliver a prospectus in connection with the resale of such Exchange Securities.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated Consummated as soon as practicable after the Exchange last Acceptance Date because it would violate applicable law or the applicable interpretations or policy of the Staff of the SEC, (ii) for any reason the Exchange Offer is not for any other reason completed Consummated by 210 days from the Closing Date Exchange Date, or (iii) prior to the Exchange Offer has been completed and in the opinion of counsel for Date: (A) the Initial Purchasers a Registration Statement must notify the Company that any Registrable Securities are not eligible to be filed and a Prospectus must be delivered by exchanged for Exchange Securities in the Initial Purchasers in connection Exchange Offer, (B) with respect to any offering or sale Holder of Registrable Securities, such Holder notifies the Company that (x) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, (y) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Guarantors Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (z) such Holder is a broker-dealer and holds Securities acquired directly from the Company or one of its affiliates or (C) in the case of any Initial Purchaser, such Initial Purchaser notifies the Company it will not receive Freely Tradeable Exchange Securities in exchange for Registrable Securities constituting any position of such Initial Purchaser’s unsold allotment, then the Company shall use their commercially reasonable its best efforts to cause to be filed as soon as practicable after such determination, date on or notice of such opinion of counsel is given prior to the Company and 30th day after the Guarantorsdate such obligation arises (but no earlier than the 210th day after the Closing Date, as or if such 210th day is not a Business Day, the case may benext succeeding Business Day (such date being the “Shelf Filing Deadline”), a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In SEC on or before the event 60th day after the Company and the Guarantors are required to file Shelf Filing Deadline (or if such 60th day is not a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentenceBusiness Day, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offernext succeeding Business Day). The Company and the Guarantors agree agrees to use their commercially reasonable its best efforts to keep the Shelf Registration Statement continuously effective until the expiration earlier of (X) two years following the period referred to in Rule 144(keffectiveness date of such Shelf Registration Statement or (Y) with respect to the Registrable Securities or such shorter period that will terminate when time as all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC. To the extent that the Company is required to include any Registrable Securities in a Shelf Registration Statement, the Company may include such Registrable Securities on any other shelf registration statement otherwise filed by the Company with respect to any of its other securities.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to this Section 2(a) and Section 2(b)2. Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event .
(e) If either (i) the Exchange Offer Registration Statement covering the offer by the Company to the Holders to exchange all of the Registrable Securities for Exchange Securities has not been filed within 210 days after the Closing Date (or, if such 210th day is not completed and a Business Day, the next succeeding Business Day), (ii) such Exchange Offer Registration Statement has not been declared effective within 330 days after the Closing Date (or, if such 330th day is not a Business Day, the next succeeding Business Day), (iii) the Exchange Offer has not been Consummated by the Exchange Date, (iv) any Shelf Registration Statement, if required hereby, has not been declared effective by the SEC within the required period following the Shelf Filing Deadline or (v) any Registration Statement is not required by this Agreement has been declared effective on or prior but ceases to 210 days from be effective at any time at which it is required to be effective under this Agreement (each such event referred to in clauses (i) through (v), a “Registration Default”), the Closing Date, Company hereby agrees that the interest rate on borne by the Registrable Securities will shall be increased by 0.25% per annum until during the Exchange Offer is completed or 90-day period immediately following the Shelf occurrence of any Registration Statement is declared effective Default and shall increase by an additional 0.25% per annum at the end of each subsequent 90-day period, but in no event shall such increase exceed 1.00% per annum in the aggregate, immediately following the occurrence of any Registration Default (such increased interest being “Special Interest”). At such time as all Registration Defaults relating to the particular Registrable Securities are cured, the interest rate borne by the SECrelevant Registrable Securities will be reduced to the original interest rate borne by such Registrable Securities; provided, however, that, if after any such reduction in interest rate pursuant to the preceding clause, a different Registration Default occurs, the interest rate borne by the relevant Registrable Securities shall again be increased pursuant to the foregoing provisions. All obligations of the Company set forth in the preceding paragraph that are outstanding with respect to any Registrable Security at the time such security ceases to be a Registrable Security shall survive until such time as all such obligations with respect to such security shall have been satisfied in full.
(ef) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' ’s obligations under Section 2(a) and Section 2(b) hereof).
Appears in 1 contract
Registration Under the 1933 Act. (a) PREFERRED STOCK EXCHANGE OFFER REGISTRATION. To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and at its cost shall (A) file on or prior to the Guarantors shall use their commercially reasonable efforts to cause to be filed an 90th calendar day following the Original Issue Date with the SEC a Preferred Stock Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities Preferred Stock for Exchange Securities and Preferred Stock, (B) use its best efforts to have cause such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Preferred Stock Exchange Offer Registration Statement has been to be declared effective by the SEC and on or prior to the 120th calendar day following the Original Issue Date, (C) use their commercially reasonable its best efforts to have the cause such Preferred Stock Exchange Offer completed not later than 210 Registration Statement to remain effective until 90 calendar days after the Closing Date. The Company and closing of the Guarantors shall commence the Preferred Stock Exchange Offer by mailing and (D) use its best efforts to keep the related exchange offer Prospectus Preferred Stock Exchange Offer open for not less than 30 days after, and accompanying documents to each Holder stating, in addition consummate the Preferred Stock Exchange Offer on or prior to such other disclosures as are the 45th calendar day following (or longer if required by applicable law), the date that the Preferred Stock Exchange Offer Registration Statement is declared effective. Upon the effectiveness of the Preferred Stock Exchange Offer Registration Statement, the Company shall promptly commence the Preferred Stock Exchange Offer, it being the objective of such Preferred Stock Exchange Offer to enable each Holder (other than Participating Broker-Dealers (as defined in Section 3(f) hereof)), eligible and electing to exchange Registrable Preferred Stock for Exchange Preferred Stock (assuming that such Holder is not an affiliate of the Company within the meaning of Rule 405 under the 1933 Act, acquires the Exchange Preferred Stock in the ordinary course of such Holder's business and has no arrangements or understandings with any Person to participate in the Preferred Stock Exchange Offer for the purpose of distributing the Exchange Preferred Stock) to trade such Exchange Preferred Stock from and after its receipt without any limitations or restrictions under the 1933 Act and without material restrictions under the securities laws of a substantial proportion of the several states of the United States. In connection with the Preferred Stock Exchange Offer, the Company shall:
(i) that mail to each Holder a copy of the Prospectus forming part of the Preferred Stock Exchange Offer is being made pursuant to this Registration Rights Agreement Statement, together with an appropriate letter of transmittal and that all Registrable Securities validly tendered will be accepted for exchangerelated documents;
(ii) use the dates services of acceptance the Depositary for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the "Preferred Stock Exchange Dates")Offer with respect to Preferred Stock evidenced by global certificates;
(iii) that permit Holders to withdraw, in whole or in part, tendered Registrable Preferred Stock at any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address specified in the notice time prior to the close of business business, New York City time, on the last business day on which the Preferred Stock Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange DateOffer shall remain open, by sending to the institution and at the address specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities Preferred Stock delivered for exchange exchange, and a statement that such Holder is withdrawing withdrawing, in whole or in part, his election to have such Securities Preferred Stock exchanged; and
(iv) otherwise comply in all respects with all applicable laws relating to the Preferred Stock Exchange Offer. As soon as practicable after the last close of the Preferred Stock Exchange DateOffer, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof Preferred Stock duly tendered and not validly withdrawn pursuant to the Preferred Stock Exchange Offer; andOffer in accordance with the terms of the Preferred Stock Exchange Offer Registration Statement and the letter of transmittal which is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee Transfer Agent for cancellation of certificates representing all Registrable Securities or portions thereof Preferred Stock so accepted for exchange by the Company and the GuarantorsCompany; and
(iii) issue, and cause the Trustee Transfer Agent promptly to promptly authenticate and mail deliver certificates representing Exchange Preferred Stock to each Holder, an Exchange Security Holder of Registrable Preferred Stock equal in principal amount to the principal amount Registrable Preferred Stock of such Holder so accepted for exchange. Dividends on Preferred Stock will accrue from the last date on which dividends were paid on the Registrable Securities Preferred Stock surrendered by such Holderin exchange therefor or, if no dividends have been paid on the Registrable Preferred Stock, from the Original Issue Date. The Company and the Guarantors shall use their commercially reasonable efforts to complete the 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 the Exchange Offer. The Preferred Stock Exchange Offer shall not be subject to any conditions, other than that the Preferred Stock Exchange Offer Offer, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the Staff of the SEC. Each Holder of Registrable Preferred Stock (other than Participating Broker-Dealers) who wishes to exchange such Registrable Preferred Stock for Exchange Preferred Stock in the Preferred Stock Exchange Offer shall have represented that (i) any Exchange Preferred Stock to be received by it was acquired in the ordinary course of business, (ii) at the time of the commencement of the Preferred Stock Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the 0000 Xxx) of the Exchange Preferred Stock,(iii) it is not an affiliate (as defined in Rule 405 under the 0000 Xxx) of the Company, or if it is an affiliate it will comply with the registration and prospectus delivery requirements of the 1933 Act to the extent applicable and (iv) it is not acting on behalf of any Person who could not make the representations in clauses (i) through (iii) above. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Preferred Stock Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, right to contact such Holders and otherwise facilitate the tender of Registrable Securities Preferred Stock in the Preferred Stock Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 days from the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Preferred Stock Exchange and Registration Rights Agreement (Rural Cellular Corp)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SECSEC (the “Staff”), the Company and the Guarantors Issuers shall use their commercially reasonable efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors Issuers to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange OfferOffers. The Company and the Guarantors Issuers shall commence the Exchange Offer Offers promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their its commercially reasonable efforts to have the Exchange Offer completed Offers consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors Issuers shall commence the Exchange Offer by mailing sending the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the applicable Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 mailedsent, or longer if required by applicable law) (the "“Exchange Dates"”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the applicable Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; provided, however, that, if any of the Registrable Securities are in book-entry form, such Prospectus and accompanying documents shall also specify how the surrender is to be effected in accordance with applicable book-entry procedures; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities of each series delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged; provided, however, that, if any of the Registrable Securities are in book-entry form, any such telegram, telex, facsimile transmission or letter shall be sent in accordance with applicable book-entry procedures. As soon as practicable after the last Exchange Date, the Company and the Guarantors each Issuer shall:
(i1) accept for exchange Registrable Securities of the applicable series or portions thereof tendered and not validly withdrawn pursuant to the applicable Exchange Offer; and
(ii2) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities of the applicable series or portions thereof so accepted for exchange by the Company such Issuer and the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security of the applicable series equal in principal amount to the principal amount of the Registrable Securities of such series surrendered by such Holder; provided that if any of the Registrable Securities are in book-entry form, such Issuer shall, in co- operation with the Trustee, effect the exchange of Registrable Securities in accordance with applicable book-entry procedures. The Company and the Guarantors Issuers shall use their commercially reasonable efforts to complete the Exchange Offer Offers 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 the Exchange OfferOffers. The Exchange Offer Offers shall not be subject to any conditions, other than that the each Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors Issuers shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is Offers are made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offers. Each Holder that participates in the Exchange Offers, as a condition to participation in the Exchange Offers, will be required to represent to the applicable Issuer in writing (which may be contained in the applicable letter of transmittal) that at the time of consummation of the applicable Exchange Offer: (i) any Exchange Securities received in exchange for Registrable Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Securities; (ii) such Holder has no arrangements or understandings with any Person to participate in the distribution (within the meaning of the 0000 Xxx) of the Exchange Securities within the meaning of the 1933 Act; (iii) such Holder is not an “affiliate” (as defined in Rule 405 of the 0000 Xxx) of either Issuer; (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 Exchange Securities; and (v) if such Holder is a Participating Broker-Dealer, such Holder will receive Exchange 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 1933 Act (including, but not limited to, the prospectus delivery requirements thereunder).
(b) In the event that (i) the Company and the Guarantors Issuers determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SECStaff, (ii) the Exchange Offer is Offers are not for any other reason completed by 210 days from consummated on or prior to the 365th day following the Closing Date (or if such 365th day is not a Business Day, the next succeeding Business Day) or (iii) any Holder of Registrable Securities notifies the applicable Issuer that (A) it is prohibited by law or SEC policy from participating in the applicable Exchange Offer, (B) it may not resell the Exchange Securities acquired by it in the applicable Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed is not appropriate or available for such resales, or (C) it is a broker-dealer and a Prospectus must be delivered by owns Securities acquired directly from such Issuer or an affiliate of such Issuer, then the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors Issuers shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantorsapplicable Issuer, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SECSEC promptly. In the event the Company and the Guarantors Issuers are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors Issuers shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange OfferOffers. The Company and the Guarantors Issuers agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until two years from the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities Closing Date or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration StatementStatement (the “Shelf Registration Period”). The Company and the Guarantors Issuers further agree to supplement or amend the Shelf Registration Statement and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors Issuers for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement or Free Writing Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors Issuers agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC; provided that the Issuers shall be deemed to have furnished such amendment or supplement if they shall have timely made such amendment or supplement available on “XXXXX.”
(c) The Company and the Guarantors Issuers shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities pursuant to the Shelf Registration StatementStatement and any other expenses incurred by it that are not Registration Expenses.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SECSEC or become effective automatically upon filing; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities of a series pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become been effective with respect to such series during the period of such interference until the offering of Registrable Securities of such series pursuant to such Registration Statement may legally resume. In the event (1) either or both Exchange Offers are not consummated on or prior to the Exchange Offer is not completed and 365th day following the Closing Date, (2) the Shelf Registration Statement Statement, if required pursuant to Section 2(b), is not declared effective on or prior to 210 days from the 365th day following the Closing Date, or (3) in the case of a Shelf Registration Statement, it becomes effective and thereafter ceases to be effective or usable (x) at any time during the Shelf Registration Period and such failure to remain effective or usable exists for more than 30 days (whether or not consecutive) in any 12- month period or (y) on more than two occasions in any 12-month period during the Shelf Registration Period (each such event referred to in clauses (1), (2) and (3), a “Registration Default”), then with respect to the first 90-day period immediately following the occurrence of such Registration Default, the interest rate on the Registrable Securities of each series to which such Registration Default relates will be increased by 0.25% per annum until and will increase by an additional 0.25% per annum on the principal amount of Registrable Securities of each such series with respect to each subsequent 90-day period, up to maximum amount of additional interest of 1.00% per annum (“Additional Interest”). Additional Interest, if any, will be paid by the applicable Issuer (or the Company pursuant to the Guarantee, if applicable) on each interest payment date to Holders of such series of Registrable Securities in the same manner as payments of interest on the Securities of the applicable series. A Registration Default ends when the Securities of the applicable series cease to be Registrable Securities or, if earlier, (i) in the case of a Registration Default under clause (1) of the definition thereof, when the applicable Exchange Offer is completed or the Shelf Registration Statement becomes effective, (ii) in the case of a Registration Default under clause (2) of the definition thereof, when the Shelf Registration Statement becomes effective or (iii) in the case of a Registration Default under clause (3) of the definition thereof, when the Shelf Registration Statement again becomes effective and usable. If at any time more than one Registration Default with respect to a series of Registrable Securities has occurred and is declared effective continuing, then, until the next date that there is no Registration Default with respect to such series, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the SECdate that the earliest such Registration Default with respect to such series occurred and ends on such next date on which there is no Registration Default with respect to the applicable series. Additional Interest will accrue from and including the date of a Registration Default to, but excluding, the date on which the Registration Default has been cured in accordance with this Section 2(d).
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors Issuers acknowledge that any failure by the Company or any Guarantor Issuers to comply with its their respective obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' Issuers’ respective obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Albemarle Wodgina Pty LTD)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially its reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. Such Registration Statement may include the Company’s 8% Senior Notes due 2011. The Company will file an Exchange Offer Registration Statement with the SEC on or prior to 60 days after the Closing Date and will use its reasonable best efforts to have the Guarantors Exchange Offer Registration Statement declared effective by the SEC on or prior to 240 days after the Closing Date. The Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially its reasonable best efforts to have the Exchange Offer completed consummated not later than 210 30 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Registrable Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially its reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff staff of the SEC, (ii) the Exchange Offer is not for any other reason completed declared effective by 210 the SEC on or prior to 240 days from after the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. If the Company is obligated to file a Shelf Registration Statement pursuant to this Section 2(b), the Company will file the Shelf Registration Statement with the SEC on or prior to 60 days after the Closing Date and will use its reasonable best efforts to cause the Shelf Registration to be declared effective by the SEC on or prior to 270 days after such obligation arises, or otherwise in accordance with the terms of this Agreement. The Company and the Guarantors agree agrees to use their commercially its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) after the Closing Date, with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company will, in the event of such a shelf registration, provide to each Holder copies of the prospectus, notify each Holder when the Shelf Registration Statement for the Notes has become effective and take certain other actions as are required to permit resales of the Guarantors Notes. The Company further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event (1) the Exchange Offer is not completed and Company fails to file any of the Shelf Registration Statement registration statements required by this Agreement on or before the date specified for such filing; or (2) any of such registration statements is not declared effective by the SEC on or prior to 210 days from the Closing date specified for such effectiveness (the “Effectiveness Target Date, ”); or (3) the interest rate on the Securities will be increased by 0.25% per annum until Company fails to consummate the Exchange Offer is completed within 30 business days of the Effectiveness Target Date with respect to the Exchange Offer Registration Statement; or (4) the Shelf Registration Statement is declared effective but thereafter ceases to be effective or usable in connection with resales or exchanges of Notes during the periods specified in this Agreement (each such event referred to in clauses (1) through (4) above, a “Registration Default”), then the Company will pay Additional Interest (in addition to interest which is otherwise due on the Notes) to each Holder of Notes, with respect to the first 90-day period immediately following the occurrence of the first Registration Default, in an amount equal to 0.25% per annum of the principal amount of Notes held by such Holder. The amount of Additional Interest (in addition to interest which is otherwise due on the SECNotes) will increase by an additional 0.25% per annum of the principal amount of such Notes with respect to each subsequent 90-day period until all Registration Defaults have been cured, up to a maximum amount of Additional Interest (in addition to interest which is otherwise due on the Notes) for all Registration Defaults of 1.0% per annum of the principal amount of such Notes.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure All Additional Interest paid in connection with a Registration Default will be paid by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to cash semi-annually on the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.regular interest payment dates described
Appears in 1 contract
Samples: Registration Rights Agreement (E Trade Financial Corp)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall use their reasonable efforts to cause such Registration Statement to be declared effective under the 1933 Act within 270 days after the date of original issue of the Securities (the “Issue Date”). The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder statingthrough the common depositary for the Securities or otherwise, stating in such Prospectus or accompanying documents, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 "each an “Exchange Dates"Date”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business New York time on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) Guarantors and issue, and cause the Trustee to promptly authenticate and mail deliver to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by of such HolderHolder so accepted for exchange. The Company and the Guarantors shall use their commercially reasonable efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The If requested by the Placement Agents, the Company and the Guarantors shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. The Company and the Guarantors shall have the right to accept for exchange all Registrable Securities validly surrendered in accordance with the terms of the Exchange Offer and to extend the Exchange Offer with respect to untendered Registrable Securities, except in contravention of the requirements of Section 2(d) hereof. Each holder participating in the Exchange Offer shall be required to represent to the Company and the Guarantors in writing that at the time of the consummation of the Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any Person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the 1933 Act and (iii) such Holder is not an affiliate of either of the Company or any of the Guarantors within the meaning if Rule 405 of the 1933 Act, or if it is an affiliate such Holder will comply with the registration and prospectus delivery requirements of the 1933 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 Securities and (v) if such Holder is a broker dealer, that it will receive Exchange 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 be required to acknowledge that it will deliver a prospectus in connection with the resale of such Exchange Securities.
(b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 consummated within 330 days from after the Closing Issue Date or (iii) any Holder who participates in the the Exchange Offer has been completed and in does not receive Exchange Securities on the opinion Exchange Date that may be sold without restriction under state and federal securities laws (other than due solely to the status of counsel for such Holder as an affiliate of the Initial Purchasers a Registration Statement must be filed Company or any Guarantor within the meaning of the 1933 Act, and a Prospectus must be delivered by provided that such Holder provides the Initial Purchasers in connection Company with any offering or sale notice of Registrable Securitiessuch event prior to the 90th day following the Exchange Date), the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may beCompany, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers Placement Agents after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) under the 1933 Act with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree to use their reasonable efforts to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed consummated and the a Shelf Registration Statement is not declared effective on or prior to 210 330 days from after the Closing DateIssue date, the interest rate on the Securities will be increased by 0.25% per annum and the amount of such additional interest will increase by an additional 0.25% for each subsequent 90-day period, up to a maximum of 1.0% over the interest rate on the Securities, as determined in accordance with Section 4.1 of the Indenture, until the Exchange Offer is completed consummated or the a Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the The Company and the Guarantors acknowledge that any failure by the Company or any Guarantor and the Guarantors to comply with its their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury damages to the Initial Purchasers Placement Agents or the Holders Holders, and that the amount of monetary damages payable by the Company and the Guarantors is limited to the amounts set forth in Section 2(d) hereof. Notwithstanding the foregoing, in the event of any such failure for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required entitled to specifically the equitable remedy of specific performance to enforce the Company's ’s and the Guarantors' ’ obligations under Section 2(a) and Section 2(b) hereof.
(f) Each of the Company and the Guarantors represents, warrants and covenants that it will not, and will use its reasonable best efforts to cause its agents and representatives not to prepare, make, use, authorize, approve or refer to any Free Writing Prospectus in connection with any Exchange Offer or Shelf Registration.
Appears in 1 contract
Samples: Registration Rights Agreement (NCO Teleservices, Inc.)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed filed, no later than 60 days after the Closing Date, an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable its best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the Prospectus related exchange offer Prospectus to the Exchange Offer and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interestinterest in accordance with its terms, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable its best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date April 22, 1998 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agents or SCANA a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agents or SCANA, as the case may be, in connection with any offering or sale by them of Registrable SecuritiesSecurities which they acquired from the Company, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and use its best efforts have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.combined
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Knology Holdings Inc /Ga)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) Guarantors and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the rightnight, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from after the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agents a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agents in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed consummated and the Shelf Registration Statement is not declared effective on or prior to 210 days from after the Closing Date, the interest rate on the Securities will be increased on each day thereafter by 0.250.5% per annum until the Exchange Offer is completed consummated or the Shelf Registration Statement is declared effective by the SEC. Upon the consummation of the Exchange Offer or the effectiveness of the Shelf Registration Statement, the interest rate borne by the Securities from the date of such consummation or effectiveness, as the case may be, will be reduced to the original interest rate.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor and the Guarantors to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Kansas City Southern)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff staff of the SEC, the Company and the Guarantors Guarantor shall use their commercially reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors Guarantor to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors Guarantor shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors Guarantor shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his its election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(vi) (i) accept for exchange Registrable Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer; and
(vii) (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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable its best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date August 2, 2001 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agents addressed to the Company and the Guarantor a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agents in connection with any offering or sale of Registrable SecuritiesSecurities by a Holder that (A) is or was prohibited by law or Commission policy from participating in the Exchange Offer or (B) may not resell the Exchange Securities 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 by such Holder or (C) is a Broker-Dealer and holds Registrable Securities acquired directly from the Company or any of its Affiliates, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed as soon as practicable after such determination, date or notice receipt of such opinion of counsel is given to by the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors Guarantor are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors Guarantor shall use their commercially reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers Placement Agents after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially reasonable its best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Shelf Holder with respect to information relating to such Shelf Holder, and to use their commercially reasonable its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Shelf Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the -------- ------- offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume; provided further that if the offering -------- of Registrable Securities pursuant to a Shelf Registration Statement is interfered with as described in the previous sentence by reason of any information relating to a Shelf Holder furnished to the Company in writing by such Shelf Holder expressly for use in such Shelf Registration Statement, then the provisions of the following sentence shall be inapplicable with respect to such Shelf Holder. In the event that either the Exchange Offer is not completed and the consummated or any Shelf Registration Statement required to be filed pursuant to this Agreement is not declared effective on or prior to 210 days from the Closing DateAugust 2, 2001, the interest rate on the Securities will be increased by 0.250.5% per annum until the Exchange Offer is completed consummated or the Shelf Registration Statement is declared effective by the SEC; provided that such interest rate shall not be increased pursuant to this Section 2(d) if the Company and the Guarantor are required to file the Shelf Registration Statement solely as a result of matters referred to in clause (iii) of the first sentence of Section 2(b) hereof and the Company and the Guarantor shall not have received the opinion of counsel referred to in such clause (iii) upon or prior to the consummation of the Exchange Offer.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable its best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable its best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date December 25, 2002 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable its best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially reasonable its best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a2 (a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; providedPROVIDED, howeverHOWEVER, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event the Exchange Offer is not completed consummated and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing DateDecember 25, 2002, the interest rate on the Securities will be increased by 0.250.5% per annum until the Exchange Offer is completed consummated or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Stone Container Corp)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed filed, no later than 60 days after the Closing Date an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable its best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrete in value until April 15, 2002 and thereafter will accrue interestinterest in accordance with the terms of the Securities, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable its best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents, if requested by the Placement Agents, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date September 6, 1997 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agents a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers a Placement Agent in connection with any offering or sale by such Placement Agent of Registrable SecuritiesSecurities that were a part of such Placement Agent's original unsold allotment, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, in addition to its obligations under the foregoing Section 2(a), the Company and the Guarantors shall use their commercially reasonable its best effort to file as soon as practicable after delivery of such opinion of counsel and use its best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers such Placement Agent as part of its original unsold allotment after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially reasonable its best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the all Registrable Securities covered by the Shelf Registration Statement or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that the Exchange Offer is not completed consummated, and if a Shelf Registration Statement is required hereby, the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing DateSeptember 6, 1997, the interest rate on the Securities (and the Exchange Securities) will be increased increase by 0.250.5% per annum until the Exchange Offer is completed consummated or the a Shelf Registration Statement is declared effective by the SECeffective.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (McCaw International LTD)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) Guarantors and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 consummated within 180 days from the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indentures, in the event the Exchange Offer is not completed consummated and the Shelf Registration Statement is not declared effective on or prior to 210 within 180 days from the Closing Date, the interest rate rates on the Securities will be increased by 0.25.5% per annum until the Exchange Offer is completed consummated or the Shelf Registration Statement is declared effective by the SECSEC (it being understood that, with respect to the Secured Securities, the “interest rate” shall mean the floating interest rate as in effect from time to time).
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor the Guarantors to comply with its their respective obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's Company and the Guarantors' ’ obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Time Warner Telecom Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable its best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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) and in the manner specified in the notice prior to the close of business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his its election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable its best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SECSEC do not permit the Company to effect the Exchange Offer, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date August 12, 2004 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall shall, at its cost, use their commercially reasonable its best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable its best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially reasonable its best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that either the Exchange Offer is not completed and consummated or the Shelf Registration Statement Statement, if required hereby, is not declared effective on or prior to 210 days from the Closing DateAugust 12, 2004, the interest rate on the Securities will be increased by 0.250.5% per annum until the Exchange Offer is completed consummated or the Shelf Registration Statement Statement, if required hereby, is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Registrable Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date October 29, 1999 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agents a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agents in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers Placement Agents after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being it is used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed consummated and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing DateOctober 29, 1999, the interest rate on the Securities will be increased by 0.250.5% per annum until the Exchange Offer is completed consummated or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its their respective obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Comstock Resources Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors Issuer shall use their commercially its reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors Issuer to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors Issuer shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially its reasonable best efforts to have the Exchange Offer completed Consummated not later than 210 days after following the Closing Date. The Company and the Guarantors Issuer shall commence the Exchange Offer by mailing the related exchange offer Prospectus and any accompanying documents to each Holder stating(it being agreed that delivery to DTC shall constitute mailing)stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) unless the Registrable Security is held through DTC, that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors Issuer shall:
(i) accept for exchange Registrable Securities 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 Registrable Securities or portions thereof so accepted for exchange by the Company Issuer and the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors Issuer shall use their commercially its reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. No securities other than the Securities or any additional securities issued under the Indenture and, at the Company's option, the Company's Floating Rate Senior Notes due 2013 or any additional securities issued under the Floating Rate Senior Notes Indenture, shall be included in the Exchange Offer Registration Statement. The Company and the Guarantors Issuer shall inform the Initial Purchasers Purchaser of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Purchaser shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine Issuer determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated Consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by Consummated within 210 days from after the Closing Date or (iii) if (A) the Initial Purchaser holds any Securities 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 (B) any Holder is not entitled to participate in the Exchange Offer has been completed Offer, and any such Holder or Placement Agent so requests in writing on or prior to the opinion 60th day after the consummation of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable SecuritiesExchange Offer, the Company and the Guarantors Issuer shall use their commercially its reasonable best efforts to cause to be filed as soon as reasonably practicable after such determination, date or notice receipt of such opinion of counsel is given to the Company and the Guarantors, as the case may benotice, a Shelf Registration Statement providing for the sale by the Holders of all of the such Registrable Securities referred to in clause (iii) and shall use its reasonable best efforts to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are Issuer is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company Issuer shall file and the Guarantors shall use their commercially its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all such Registrable Securities referred to in clause (iii) and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers Purchaser or such other Holders after completion of the Exchange Offer. The Company and the Guarantors agree Issuer agrees to use their commercially its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors Issuer further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors Issuer for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree Issuer agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors Issuer shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Exchange Offer Registration Statement or the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed Consummated and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Dateas set forth below, then, the interest rate on the Registrable Securities will be increased by 0.25% per annum until (the "Additional Interest") as follows:
(i) if (A) neither the Exchange Offer Registration Statement nor a Shelf Registration Statement has been filed with the SEC on or prior to the 120th day after the Closing Date or (B) the Issuer is completed required to file a Shelf Registration Statement pursuant to Section 2(b)(iii) hereof and such Shelf Registration Statement is not filed on or prior to the Filing Date applicable thereto then, commencing on the day after either such 120th day in the case of clause (A) or the day after such Filing Date in the case of clause (B), Additional Interest shall accrue on the principal amount of the Registrable Securities at a rate of 0.50% per annum; or
(ii) if (A) neither the Exchange Offer Registration Statement nor a Shelf Registration Statement is declared effective by the SECSEC on or prior to the 180th day after the Closing Date or (B) the Issuer is required to file a Shelf Registration Statement pursuant to Section 2(b)(iii) hereof and such Shelf Registration Statement is not declared effective by the SEC on or prior to the 60th day following the Filing Date applicable thereto then, commencing on the day after either such 180th day in the case of clause (A) or the day after the Filing Date in the case of clause (B), Additional Interest shall accrue on the principal amount of the Registrable Securities at a rate of 0.50% per annum; or
(iii) subject to Sections 2(f) and 2(g) if (A) the Issuer has not exchanged Exchange Securities for all Securities validly tendered in accordance with the terms of the Exchange Offer on or prior to the 210th day after the Closing Date or (B) if applicable, the Shelf Registration Statement has been declared effective and such Shelf Registration Statement ceases to be effective at any time prior to the second anniversary of the Closing Date (or, if earlier, the date when all Securities have been disposed of thereunder), then Additional Interest shall accrue on the principal amount of the Registrable Securities at a rate of 0.50% per annum commencing on (x) the day after the 210th day after the Closing Date, in the case of (A) above, or (y) the day after the day such Shelf Registration Statement ceases to be effective in the case of (B) above; provided, further, that the Issuer shall in no event be required to pay additional interest for more than one event in clauses (i), (ii), or (iii) at any one time; provided further, however, that (1) upon the filing of the Exchange Offer Registration Statement or a Shelf Registration Statement (in the case of clause (i)(A) above) or a Shelf Registration Statement (in the case of clause (ii)(B) above, (2) upon the effectiveness of the Exchange Offer Registration or a Shelf Registration Statement (in the case of clause (ii)(A) above) or a Shelf Registration (in the case of (i)(B) above), or (3) upon the exchange of Exchange Securities for all Registrable Securities tendered (in the case of clause (iii)(A) above), or (4) upon the effectiveness of the Shelf Registration Statement which had ceased to remain effective (in the case of clause (iii)(B) above), Additional Interest on the Securities as a result of such clause (or the relevant subclause thereof), as the case may be, shall cease to accrue.
(e) Without limiting the remedies available to the Initial Purchasers Purchaser and the Holders, the Company and the Guarantors acknowledge Issuer acknowledges that any failure by the Company or any Guarantor it to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Purchaser or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Purchaser or any Holder may obtain such relief as may be required to specifically enforce the CompanyIssuer's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
(f) No Holder of Registrable Securities may include any of its Registrable Securities in any Shelf Registration unless and until such Holder furnishes to the Issuer, in writing within 20 days after receipt of a request therefor, the information with respect to such Holder specified in Items 507 and 508 (as applicable) of Regulation S-K under the 1933 Act and any other applicable rules, regulations or policies of the SEC for use in connection with any Shelf Registration or Prospectus included therein, on a form to be provided by the Issuer. No Holder of Registrable Securities shall be entitled to Additional Interest pursuant to Section 2(d) hereof unless and until such Holder shall have provided all such information. Each selling Holder agrees to furnish promptly to the Issuer additional information to be disclosed so that the information previously furnished to the Issuer by such Holder does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(g) Additional Interest shall not accrue with respect to an event listed in Sections 2(d) hereof (each, a "Registration Default") if (i) such Registration Default under Section 2(d)(iii)(B) hereof occurs because of the filing of a post-effective amendment to such Registration Statement to incorporate annual audited financial information with respect to the Issuer where such post-effective amendment is not yet effective and needs to be declared effective to permit Holders to use the related Prospectus, (ii) such Registration Default occurs because of the occurrence of other material events or developments with respect to the Issuer that would need to be described in such Registration Statement or the related Prospectus, and the effectiveness of such Registration Statement is reasonably required to be suspended while such Registration Statement and related Prospectus are amended or supplemented to reflect such events or developments, (iii) such Registration Default results from the suspension of the effectiveness of such Registration Statement because of the existence of material events or developments with respect to the Issuer or any of its affiliates, the disclosure of which the Issuer determines in good faith would have a material adverse effect on its business, operations or prospects, or (iv) such Registration Default results from the suspension of the effectiveness of such Registration Statement because the Issuer does not wish to disclose publicly a pending material business transaction that has not yet been publicly disclosed; provided, however, that if any such Registration Default exists and continues on more than 45 consecutive days and an aggregate of 90 days in any 12-month period, Additional Interest shall accrue and be payable in accordance with Section 2(d) hereof from the 46th or 91st day, as the case may be, on which any such Registration Default exists, and shall continue to accrue until the date on which such Registration Default is cured.
Appears in 1 contract
Samples: Registration Rights Agreement (Centennial Communications Corp /De)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors Issuers shall use their commercially reasonable efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors Issuers to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors Issuers shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors Issuers shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors Issuers shall:
(i) 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 Issuers and the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors Issuers shall use their commercially reasonable efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any material conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors Issuers shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors Issuers determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from after the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agents a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agents in connection with any offering or sale of Registrable Securities, the Company and the Guarantors Issuers shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsIssuers, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors Issuers are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors Issuers shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers Placement Agents after completion of the Exchange Offer. The Company and the Guarantors Issuers agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors Issuers further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors Issuers for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors Issuers agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors Issuers shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed consummated and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Dateas set forth below, then, the interest rate on the Securities will be increased by (the "Additional Interest") as follows:
(i) if (A) neither the Exchange Offer Registration Statement nor a Shelf Registration Statement has been filed with the SEC within 120 days after the Closing Date or (B) the Issuers are required to file a Shelf Registration Statement pursuant to Section 2(b)(iii) hereof and such Shelf Registration Statement is not filed on or prior to the Filing Date applicable thereto then, commencing on the day after either such 120th day in the case of clause (A) or such Filing Date in the case of clause (B), Additional Interest shall accrue on the principal amount of the Registrable Securities at a rate of 0.25% per annum until for the first 90 days immediately following thereafter, and such Additional Interest rate shall increase by an additional 0.25% per annum at the beginning of each subsequent 90-day period; or
(ii) if (A) neither the Exchange Offer is completed or the Registration Statement nor a Shelf Registration Statement is declared effective by the SECSEC within 180 days after the Closing Date or (B) the Issuers are required to file a Shelf Registration Statement pursuant to Section 2(b)(iii) hereof and such Shelf Registration Statement is not declared effective by the SEC on or prior to the 60th day following the Filing Date applicable thereto then, commencing on the day after either such 180th day in the case of clause (A) or 60th day following the Filing Date in the case of clause (B), Additional Interest shall accrue on the principal amount of the Registrable Securities at a rate of 0.25% per annum for the first 90 days immediately following thereafter, and such Additional Interest rate shall increase by an additional 0.25% per annum at the beginning of each subsequent 90-day period; or
(iii) subject to Sections 2(f) and 2(g), if (A) the Issuers have not exchanged Exchange Securities for all Securities validly tendered in accordance with the terms of the Exchange Offer on or prior to the 210th day after the Closing Date or (B) if applicable, the Shelf Registration Statement has been declared effective and such Shelf Registration Statement ceases to be effective at any time prior to the second anniversary of the Closing Date (or, if earlier, the date when all Securities have been disposed of thereunder), then Additional Interest shall accrue on the principal amount of the Registrable Securities at a rate of 0.25% per annum for the first 90 days commencing on (x) the 211th day after the Closing Date, in the case of (A) above, or (y) the day such Shelf Registration Statement ceases to be effective in the case of (B) above, and such Additional Interest rate shall increase by an additional 0.25% per annum at the beginning of each subsequent 90-day period; provided, however, that the Additional Interest rate on the Securities may not exceed in the aggregate 1.0% per annum; provided further, that the Issuers shall in no event be required to pay additional interest for more than one event in clauses (i), (ii), or (iii) at any one time; provided further, however, that (1) upon the filing of the Exchange Offer Registration Statement or a Shelf Registration Statement (in the case of clause (i) above), (2) upon the effectiveness of the Exchange Offer Registration or a Shelf Registration Statement (in the case of clause (ii) above), or (3) upon the exchange of Exchange Securities for all Securities tendered (in the case of clause (iii)(A) above), or (4) upon the effectiveness of the Shelf Registration Statement which had ceased to remain effective (in the case of clause (iii)(B) above), Additional Interest on the Securities as a result of such clause (or the relevant subclause thereof), as the case may be, shall cease to accrue.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Company and the Guarantors Issuers acknowledge that any failure by the Company or any Guarantor Issuers to comply with its their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Company's and the GuarantorsIssuers' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Dayton Superior Corp)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially its reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially its reasonable best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not 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 DatesEXCHANGE DATES");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 forth, among other things, the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities 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 Registrable Securities or portions thereof so accepted for exchange by the Company and the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially its reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Purchaser of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Purchaser shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, SEC or (ii) the Exchange Offer is not for any other reason completed by 210 days from the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Purchaser a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Purchaser in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable efforts to may cause to be filed as soon as practicable after such determination, date determination or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file files a Shelf Registration Statement solely as a result of the matters referred to in clause (iiiii) of the preceding sentence, the Company and the Guarantors shall use their commercially its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The If the Company has determined to file and use its reasonable best efforts to have the Guarantors agree Shelf Registration Statement declared effective, the Company agrees to use their commercially its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed consummated and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing DateSeptember 9, 2002, the interest rate on the Securities will be increased by 0.250.5% per annum until (i) the Exchange Offer is completed or consummated, (ii) the Shelf Registration Statement is declared effective by the SEC, or (iii) the Securities shall have ceased to be outstanding.
(e) Without limiting the remedies available to the Initial Purchasers Purchaser and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Purchaser or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Purchaser or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company Operating Partnership and the Guarantors shall use their commercially reasonable efforts to cause to be filed after the Closing Date an Exchange Offer Registration Statement covering the offer by the Company Operating Partnership and the Guarantors to the Holders to exchange all of the Registrable Securities Notes for Exchange Securities Notes, use their commercially reasonable efforts to have such Registration Statement declared effective by the SEC, and to have such Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer. The Company Operating Partnership and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable efforts to have the Exchange Offer completed consummated not later than 210 180 days after the Closing Date. The Company Operating Partnership and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities Notes validly tendered 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 Registrable Security Note not tendered will remain outstanding and continue to accrue interestinterest in accordance with the terms of the Notes, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security Note exchanged pursuant to the Exchange Offer will be required to surrender such Registrable SecurityNote, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities Notes delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Notes exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors Operating Partnership shall:
(i) accept for exchange Registrable Securities Notes or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee Registrar for cancellation all Registrable Securities Notes or portions thereof so accepted for exchange by the Company Operating Partnership and the Guarantors; and
(iii) issue, and cause the Trustee or the authenticating agent to promptly authenticate and mail to each Holder, an Exchange Security Note equal in principal amount to the principal amount of the Registrable Securities Notes surrendered by such Holder. The Company Operating Partnership and the Guarantors shall use their commercially reasonable efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors Operating Partnership shall inform the Initial Purchasers Purchasers, if requested by the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities Notes in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine Operating Partnership determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 consummated on or prior to 180 days from after the Closing Date Date, or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable SecuritiesNotes, the Company Operating Partnership and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may beOperating Partnership, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Notes and use their commercially reasonable efforts to have such Shelf Registration Statement declared effective by the SEC. In the event the Company Operating Partnership and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company Operating Partnership and the Guarantors shall file and use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities Notes and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities Notes held by the Initial Purchasers after completion of the Exchange Offer. The Company Operating Partnership and the Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the expiration of date that is one year after the period referred to in Rule 144(k) with respect to the Registrable Securities first date on which such Shelf Registration Statement becomes effective or such shorter period that will terminate earlier date when all of the Registrable Securities Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company Operating Partnership and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company Operating Partnership and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their its commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree Operating Partnership agrees to furnish to the Holders of Registrable Securities Notes copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company Operating Partnership and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities Notes pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities Notes pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that the Exchange Offer is not completed consummated, and if a Shelf Registration Statement is required hereby, the Shelf Registration Statement is not declared effective on or prior to 210 180 days from after the Closing Date, the interest rate on the Securities Notes (and the Exchange Notes) will be increased increase by 0.250.5% per annum until the Exchange Offer is completed consummated or the a Shelf Registration Statement is declared effective by the SECeffective.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company Operating Partnership and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its their respective obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's respective obligations of the Operating Partnership and the Guarantors' obligations Guarantors under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (FelCor Lodging Trust Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SECSEC (the “Staff”), the Company and the Guarantors shall use their its commercially reasonable efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their its commercially reasonable efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing or otherwise transmitting the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities 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 mailedmailed or sent) (the "“Exchange Dates"”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; provided, however, that, if any of the Registrable Securities are in book-entry form, such Prospectus and accompanying documents shall also specify how the surrender is to be effected in accordance with applicable book-entry procedures; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder; provided that if any of the Registrable Securities are in book-entry form, the Company shall, in co-operation with the Trustee, effect the exchange of Registrable Securities in accordance with applicable book-entry procedures. The Company and the Guarantors shall use their commercially reasonable efforts to complete the 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 the Exchange OfferOffer in all material respects. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities Each Holder that participates in the Exchange Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Company in writing (which may be contained in the applicable letter of transmittal) that at the time of consummation of the Exchange Offer: (i) any Exchange Securities received in exchange for Registrable Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Securities; (ii) such Holder has (and did not have at the time of commencement of the Exchange Offer or during the Exchange Offer) no arrangements or understandings with any Person to participate in the distribution (within the meaning of the 0000 Xxx) of the Exchange Securities within the meaning of the 1933 Act; (iii) such Holder is not an “affiliate” (as defined in Rule 405 of the 0000 Xxx) of the Company or any Guarantor; (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 Exchange Securities; and (v) if such Holder is a Participating Broker-Dealer, such Holder will receive Exchange 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 1933 Act (including, but not limited to, the prospectus delivery requirements thereunder).
(b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SECStaff, (ii) the Exchange Offer is not for any other reason completed by 210 days from consummated on or prior to the 365th day following the Closing Date (or if such 365th day is not a Business Day, the next succeeding Business Day) or (iii) any Holder of Registrable Securities notifies the Company no later than 30 days after the consummation of the Exchange Offer has been completed and that (A) it is prohibited by law or SEC policy from participating in the opinion of counsel for Exchange Offer, (B) it may not resell the Initial Purchasers Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Offer Registration Statement must be filed is not appropriate or available for such resales, or (C) it is a broker-dealer and a Prospectus must be delivered by owns Securities acquired directly from the Initial Purchasers in connection with any offering Company or sale an affiliate of Registrable Securitiesthe Company, then the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared become effective by the SECpromptly. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iiiiii)(C) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared become effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until two years from the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities Closing Date or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration StatementStatement (the “Shelf Registration Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC; provided that the Company shall be deemed to have furnished such amendment or supplement if it shall have timely made such amendment or supplement available on “XXXXX.”
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities pursuant to the Shelf Registration StatementStatement and any other expenses incurred by it that are not Registration Expenses.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SECSEC or become effective automatically upon filing; provided, however, that, if, after it has been declared become effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become been effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event (1) the Exchange Offer is not completed consummated and (2) the Shelf Registration Statement is has not declared effective become effective, in each case, on or prior to 210 days from the 365th day following the Closing DateDate (or if such 365th day is not a Business Day, the next succeeding Business Day), or in the case of a Shelf Registration Statement, it thereafter ceases to be effective or usable except as provided in Section 3(q) below in connection with resales or exchanges of the Exchange Securities during the Shelf Registration Period (each such event referred to in clauses (1) and (2), a “Registration Default”), then with respect to the first 90-day period immediately following the occurrence of such Registration Default, the interest rate on the Registrable Securities will be increased by 0.25% per annum until and will increase by an additional 0.25% per annum on the Exchange Offer is completed principal amount of Securities with respect to each subsequent 90-day period, up to maximum amount of additional interest of 1.0% per annum (“Additional Interest”). Additional Interest, if any, will be paid by the Company or the Shelf Registration Statement is declared effective by Guarantors on each interest payment date to Holders in the SECsame manner as payments of interest on the Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its their respective obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's ’s and the Guarantors' ’ obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff staff of the SECSEC (the "Staff"), the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution institutions and at the address addresses (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution institutions and at the address addresses (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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Notes exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) Guarantors and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SECStaff, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the date that is six months after the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agents a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agents in connection with any offering or sale by such Placement Agents of Registrable SecuritiesSecurities that were acquired by the Placement Agents from the Company and the Guarantors, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsJLL, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SECSEC (such obligation, arising solely under clause (ii) above, to have filed a Shelf Registration Statement shall be deemed satisfied with respect to any Holder upon consummation of the Exchange Offer with respect to such Holder). In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers Placement Agents after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration StatementStatement or as would be permitted by then current rules and regulations. The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event the Exchange Offer is not completed consummated and the a Shelf Registration Statement is not declared effective on or prior to 210 days from the date that is six months after the Closing Date, the annual interest rate on the Securities Notes will be increased by 0.25.5% per annum until the Exchange Offer is completed consummated or the a Shelf Registration Statement is declared effective by the SEC, whereupon the interest rate will decrease permanently to the original interest rate on the Notes.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor of the Guarantors to comply with its their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Jones Lang Lasalle Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors Issuer shall use their commercially reasonable its best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors Issuer to the Holders to exchange all of the Registrable Securities Notes for Exchange Securities Notes and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors Issuer shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable its best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors Issuer shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities Notes validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least not less than 20 business days commencing from the date such notice is mailed) (the "Exchange DatesEXCHANGE DATES");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution institutions and at the address addresses (located in the Borough of Manhattan, The City of New York and in Luxembourg) specified in the notice prior to the close of business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the applicable institution and at the address (located in either the Borough of Manhattan, The City of New York or Luxembourg) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities Notes delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Notes exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors Issuer shall:
(i) accept for exchange Registrable Securities Notes 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 Notes or portions thereof so accepted for exchange by the Company Issuer and the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security Notes equal in principal amount to the principal amount of the Registrable Securities Notes surrendered by such Holder. The Company and the Guarantors Issuer shall use their commercially reasonable its best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors Issuer shall inform the Initial Purchasers Representatives of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Representatives shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities Notes in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine Issuer determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 the date that is 270 days from after the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Representatives in connection with any offering or sale of Registrable SecuritiesNotes, the Company and the Guarantors Issuer shall use their commercially reasonable its best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsIssuer, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Notes and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree Issuer agrees to use their commercially reasonable its best efforts to keep the Shelf Registration Statement continuously effective until the expiration second anniversary of the period referred to in Rule 144(k) with respect to the Registrable Securities Closing Date or such shorter period that will terminate when all of the Registrable Securities Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors Issuer further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors Issuer for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree Issuer agrees to furnish to the Holders of Registrable Securities Notes copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors Issuer shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities Notes pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities Notes pursuant to such Registration Statement may legally resume. In As provided for in the event Indenture, from and after the Exchange Offer date that is not completed and the Shelf Registration Statement is not declared effective on or prior to 210 270 days from after the Closing Date, the interest rate on the Securities each subclass of Notes will be increased by 0.250.50% per annum until the completion of an Exchange Offer is completed or the date a Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting , whereupon the remedies available interest rate on each subclass of Notes will permanently decrease to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages applicable interest rate provided for such injuries precisely and that, in the event subclass of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereofNote.
Appears in 1 contract
Samples: Purchase Agreement (Aerco LTD)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Subsidiary Guarantors shall use their commercially reasonable efforts best efforts, at their cost, to cause to be filed within 45 days after the Closing Date, and have the SEC declare effective within 150 days after the Closing Date an Exchange Offer Registration Statement covering the offer by the Company and the Subsidiary Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Subsidiary Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable best efforts to have the Exchange Offer completed consummated not later than 210 30 days after the Closing Datesuch effective date. The Company and the Subsidiary Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days Business Days from the date such notice is mailed) (the "Exchange Dates");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Subsidiary Guarantors shall use their commercially reasonable efforts best efforts, at their cost, to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Purchaser of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Purchaser shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Subsidiary Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date June 21, 2000 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Purchaser a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Purchaser in connection with any offering or sale of Registrable Securities, the Company and the Subsidiary Guarantors shall use their commercially reasonable efforts best efforts, at their cost, to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In SEC within 60 days after the event the Company and the Guarantors are required to file a date such Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offerwas filed. The Company and the Subsidiary Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration second anniversary of the period referred to in Rule 144(k) with respect to the Registrable Securities its effective date or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. Notwithstanding the foregoing, during any consecutive 365- day period, the Company will have the ability to suspend the availability of the Shelf Registration Statement for up to two periods of up to 30 consecutive days each (except that none of such periods may occur during the 60-day period immediately prior to the maturity of the Securities) if the Company's Board of Directors determines in good faith that there is a valid purpose for the suspension. The Company and the Subsidiary Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Subsidiary Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Subsidiary Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Subsidiary Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In .
(e) If the event Company and the Subsidiary Guarantors fail to comply with the provisions of this Section 2 or if the Exchange Offer is not completed and Registration Statement or the Shelf Registration Statement fails to become effective, then additional interest (the "Additional Interest") shall become payable in respect of the Securities as follows:
(i) if (A) neither the Exchange Offer Registration Statement nor the Shelf Registration Statement is not declared effective filed with the SEC on or prior to 210 45 days from after the Closing DateDate or (B) notwithstanding that the Company and the Subsidiary Guarantors have consummated or will consummate an Exchange Offer, the interest rate Company and the Subsidiary Guarantors are required to file a Shelf Registration Statement and such Shelf Registration Statement is not filed on or prior to the date required hereby, then commencing on the day after either such required filing date, Additional Interest payable in respect of the Securities will be increased by 0.25shall accrue on the principal amount of the Securities at a rate of 0.5% per annum until for the first 90 days immediately following each such filing date, such Additional Interest rate increasing by an additional 0.5% per annum at the beginning of each subsequent 90-day period; or
(ii) if (A) neither the Exchange Offer is completed or the Registration Statement nor a Shelf Registration Statement is declared effective by the SECSEC on or prior to 150 days after the Closing Date or (B) notwithstanding that the Company and the Subsidiary Guarantors have consummated or will consummate an Exchange Offer, the Company and the Subsidiary Guarantors are required to file a Shelf Registration Statement and such Shelf Registration Statement is not declared effective by the SEC on or prior to the 60th day following the date such Shelf Registration Statement was filed, then, commencing on the day after either such required effective date, Additional Interest payable in respect of the Securities shall accrue on the principal amount of the Securities at a rate of 0.5% per annum for the first 90 days immediately following such date, such Additional Interest rate increasing by an additional 0.5% per annum at the beginning of each subsequent 90-day period; or
(iii) if (A) the Company and the Subsidiary Guarantors have not exchanged Exchange Securities for all Registrable Securities validly tendered in accordance with the terms of the Exchange Offer on or prior to the 30th day after the date on which the Exchange Offer Registration Statement was declared effective or (B) if applicable, the Shelf Registration Statement has been declared effective and such Shelf Registration Statement ceases to be effective at any time prior to the second anniversary of its effective date (other than after such time as all the Registrable Securities have been disposed of thereunder), then Additional Interest payable in respect of the Securities shall accrue on the principal amount of the Securities at a rate of 0.5% per annum for the first 90 days commencing on (x) the 31st day after such effective date, in the case of (A) above, or (y) the day such Shelf Registration Statement ceases to be effective, in the case of (B) above, such Additional Interest rate increasing by an additional 0.5% per annum at the beginning of each subsequent 90-day period; provided, however, that the Additional Interest rate on the notes may not exceed in the aggregate 2.0% per annum; provided, further, however, that (a) upon the filing of the Exchange Offer Registration Statement or a Shelf Registration Statement (in the case of clause (i) above), (b) upon the effectiveness of the Exchange Offer Registration Statement or a Shelf Registration Statement (in the case of clause (ii) above), or (c) upon the exchange of Exchange Securities for all Registrable Securities tendered (in the case of clause (iii)(A) above), or upon the effectiveness of the Shelf Registration Statement which had ceased to remain effective (in the case of clause (iii)(B) above), Additional Interest on the Securities as a result of such clause (or the relevant subclause thereof), as the case may be, shall cease to accrue.
(ef) Without limiting the remedies available to the Initial Purchasers Purchaser and the Holders, the Company and the Subsidiary Guarantors acknowledge that any failure by the Company or any Guarantor and the Subsidiary Guarantors to comply with its their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Purchaser or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Purchaser or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Subsidiary Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially its reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after (i) file the Exchange Offer Registration Statement has been with the SEC on or prior to the 120th day after the Closing Date; (ii) have the Exchange Offer Registration Statement declared effective by the SEC no later than the 180th day after the Closing Date; and use their commercially reasonable efforts to have (iii) consummate the Exchange Offer completed not no later than 210 days the 210th day after the Closing Date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the aggregate principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Registrable Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in aggregate principal amount to the aggregate principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially its reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the 5 Exchange Offer is not for any other reason completed by consummated within 210 days from after the Closing Date or (iii) the Exchange Offer has been completed and in the reasonable opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially its reasonable best efforts to cause to be filed as soon as practicable practicable, but no later than 30 days after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SECSEC no later than 90 days after such Shelf Registration Statement is filed. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) under the 1933 Act with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicablepracticable thereafter. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the a Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; providedPROVIDED, howeverHOWEVER, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. .
(e) In the event that (i) the Company has not filed the Exchange Offer Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Offer Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been completed within 210 days after Closing Date (if the Exchange Offer is not completed and the then required to be made) or (iv) any Exchange Offer Registration Statement or Shelf Registration Statement required by Section 2(a) or 2(b) hereof is not filed and declared effective on but shall thereafter either be withdrawn by the Company or prior shall become interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court (each such event referred to 210 days from in clauses (i) through (iv), a "Registration Default"), then, as liquidated damages for such Registration Default, subject to the Closing Dateprovisions of Section 2(f) hereof, special interest ("Special Interest"), in addition to the interest rate Base Interest, shall accrue on the Registrable Securities will be increased by at a rate of 0.25% per annum following the first Registration Default, and following the occurrence of the second Registration Default, such Special Interest shall increase by an additional 0.25% per annum, up to a maximum amount of 0.50% per annum. Such Special Interest shall remain in effect until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SECeffective.
(ef) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially its reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC SEC, and use their commercially its reasonable best efforts to have the Exchange Offer completed not consummated on or prior to the later than 210 of 30 business days after the Closing Datedate of effectiveness of the Exchange Offer Registration Statement or 30 days after the Effectiveness Deadline. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, 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 last Exchange DateDate and (b) represent that, at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the 1933 Act, (C) if the Holder is not a broker-dealer or is a broker-dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an affiliate (as defined in Rule 405 under the 0000 Xxx) of the Company. If the Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Securities, it will represent and warrant that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the 1933 Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the 1933 Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the 1933 Act; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his such Holder’s election to have such Securities exchanged. .
(b) As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities 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 Registrable Securities or portions thereof so accepted for exchange by the Company and the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail deliver to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered validly tendered by such Holder. .
(a) The Company and the Guarantors shall use their commercially its reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer Registration Statement is not for any other reason completed by 210 days from declared effective on or prior to the Closing Date Effectiveness Deadline or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer has been completed to the public without delivering a prospectus and that the Prospectus contained in the opinion of counsel for the Initial Purchasers a Exchange Offer Registration Statement must be filed is not appropriate or available for such resales by such Holder, or (C) such Holder is a broker-dealer and a Prospectus must be delivered by holds Securities acquired directly from the Initial Purchasers in connection with any offering Company or sale one of Registrable Securitiesits affiliates, then, upon such Holder’s written request, the Company and the Guarantors shall use their commercially its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers Holders after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration for a period of the period referred to in Rule 144(k) with respect to the Registrable Securities one year or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration StatementStatement or are no longer outstanding. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a an Exchange Offer Registration Statement or Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that (i) the Exchange Offer is not completed and the Registration Statement or Shelf Registration Statement is not declared effective on or prior to 210 365 days from after Closing Time (the Closing Date“Effectiveness Deadline”), the annual interest rate on the Securities will be increased by 0.250.50% per annum from the Effectiveness Deadline until the Exchange Offer is completed Registration Statement or the Shelf Registration Statement is declared effective by the SEC; or, (ii) the Exchange Offer is not consummated on or prior to the earlier of 30 business days after the date of effectiveness of the Exchange Offer Registration Statement or 30 days after the Effectiveness Deadline, the annual interest rate on the Securities will be increased by 0.50% until the Exchange Offer is consummated. The annual additional interest rate on the Securities will not at any time exceed 0.50% notwithstanding the Company’s failure to meet more than one of these requirements. If the Company requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Securities held by Holders who do not deliver such information to the Company when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Securities described in this clause (d) shall be payable on the regular interest payment dates for the Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' ’s obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Ipalco Enterprises, Inc.)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Registrable Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date September 3, 2002 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agents a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agents in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers Placement Agents after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being it is used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed consummated and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing DateSeptember 3, 2002, the interest rate on the Securities will be increased by 0.250.5% per annum until the Exchange Offer is completed consummated or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its their respective obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Comstock Resources Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SECSEC (the “Staff”), the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed an Exchange Offer Registration Statement after the date of the original issuance of the Securities (the “Issue Date”), covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall use their commercially reasonable efforts to cause such Registration Statement to be declared effective under the 1933 Act. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable efforts to have the Exchange Offer completed consummated not later than 210 days after the Closing DateOctober 31, 2007. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not 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) (each an “Exchange Date” and collectively, the "“Exchange Dates"”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interestinterest (but not Additional Interest), but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) Guarantors and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of Staff. Upon the SEC. The Placement Agent’s request, the Company and the Guarantors shall inform the Initial Purchasers Placement Agent of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agent shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. If the Company and the Guarantors effect the Exchange Offer, the Company and the Guarantors shall be entitled to close the Exchange Offer twenty (20) business days after such commencement (provided that the Company and the Guarantors have accepted all the Securities theretofore validly tendered in accordance with the terms of the Exchange Offer). Each holder participating in the Exchange Offer shall be required to represent to the Company and the Guarantors in writing that at the time of the consummation of the Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any Person to participate in the distribution (within the meaning of the 1000 Xxx) of the Exchange Securities and (iii) such Holder is not an affiliate of either of the Company or any of the Guarantors within the meaning if Rule 405 of the 1933 Act, or if it is an affiliate such Holder will comply with the registration and prospectus delivery requirements of the 1933 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 Securities and (v) if such Holder is a broker dealer, that it will receive Exchange 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 be required to acknowledge that it will deliver a prospectus in connection with the resale of such Exchange Securities.
(b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date September 21, 2007 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agent a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agent in connection with any offering or sale of Registrable SecuritiesSecurities because the Securities held by it are not eligible to be exchanged for Exchange Securities in the Exchange Offer, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers Placement Agent after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.Exchange
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable its best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Exchange Offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement, except that the Company may, in its discretion, accept tenders of Registrable Securities for Exchange Securities after the date that the Company consummates the Exchange Offer with respect to Registrable Securities tendered as of the date of initial consummation and, for purposes of Section 2(d), the Exchange Offer shall be deemed to have been consummated notwithstanding any such extensions of the tender period;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security Securities equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable its best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine that . Each Holder wishing to exchange Registrable Securities for Exchange Securities in the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 days from the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce make certain representations customary in such transactions, including representations that (a) any Exchange Securities received by it will be acquired in the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.ordinary course of its
Appears in 1 contract
Samples: Registration Rights Agreement (Knowles Electronics LLC)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed after the Closing Date an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities Notes for Exchange Securities Notes, use its commercially reasonable efforts to have such Registration Statement declared effective by the SEC, and to have such Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their its commercially reasonable efforts to have the Exchange Offer completed consummated not later than 210 180 days after the Closing Date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities Notes validly tendered 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 Registrable Security Note not tendered will remain outstanding and continue to accrue interestinterest in accordance with the terms of the Notes, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security Note exchanged pursuant to the Exchange Offer will be required to surrender such Registrable SecurityNote, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities Notes delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Notes exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities Notes 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 Notes or portions thereof so accepted for exchange by the Company and the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security Note equal in principal amount to the principal amount of the Registrable Securities Notes surrendered by such Holder. The Company and the Guarantors shall use their its commercially reasonable efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Purchaser, if requested by the Initial Purchaser, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Purchaser shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities Notes in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 consummated on or prior to 180 days from after the Closing Date Date, or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Purchaser a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Purchaser in connection with any offering or sale of Registrable SecuritiesNotes, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may beCompany, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Notes and use its commercially reasonable efforts to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company shall file and the Guarantors shall use their its commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities Notes and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities Notes held by the Initial Purchasers Purchaser after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their its commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to all Registrable Notes covered by the Registrable Securities Shelf Registration Statement or such shorter period that will terminate when all of the Registrable Securities Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their its commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities Notes copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities Notes pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities Notes pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that the Exchange Offer is not completed consummated, and if a Shelf Registration Statement is required hereby, the Shelf Registration Statement is not declared effective on or prior to 210 180 days from after the Closing Date, the interest rate on the Securities Notes (and the Exchange Notes) will be increased increase by 0.250.5% per annum until the Exchange Offer is completed consummated or the a Shelf Registration Statement is declared effective by the SECeffective.
(e) Without limiting the remedies available to the Initial Purchasers Purchaser and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Purchaser or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Purchaser or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' ’s obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (FelCor Lodging Trust Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially its reasonable best efforts (1) to cause to be filed an Exchange Offer Registration Statement within 120 days following the Closing Date covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for an equal aggregate principal amount of Exchange Securities and (2) to cause such Exchange Offer Registration Statement to become effective within 180 days following the Closing Date. The Company shall use commercially reasonable efforts to have such the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their its commercially reasonable efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 DatesEXCHANGE DATES");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 (to be received no later than the Exchange Date) setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities 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 Registrable Securities or portions thereof so accepted for exchange by the Company and the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their its commercially reasonable efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. If, during the period the Exchange Offer Registration Statement is effective, an event occurs which makes any statement made in such Exchange Offer Registration Statement or the related Prospectus untrue in any material respect or which requires the making of any changes in such Exchange Offer Registration Statement or Prospectus in order to make the statements therein not misleading, the Company shall use commercially reasonable efforts to prepare and file with the SEC a supplement or post-effective amendment to the Exchange Offer Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company agrees to notify the Holders to suspend the exchange of the Registrable Securities as promptly as practicable after the occurrence of such an event, and the Holders hereby agree to suspend such exchange until the Company has amended or supplemented the Prospectus to correct such misstatement or omission.
(b) In the event that If (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 consummated within 240 days from following the Closing Date or (iii) the Exchange Offer has been completed and in the written opinion of counsel for the Initial Purchasers Holders a Shelf Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers any Holder in connection with any offering reoffering or sale resale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after (x) file with the SEC within 120 days following such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may be, a Shelf Registration Statement providing for the sale resale by the Holders (other than those who fail to comply with the paragraph immediately following clause (p) of Section 3) of all of the their Registrable Securities and to have (y) cause such Shelf Registration Statement declared to become effective by the SECwithin 60 days thereafter. In the event If the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers reoffers and sales resales of Registrable Securities held by the Initial Purchasers after completion of Holders who must deliver the Exchange Offerrelated Prospectus. The Company and the Guarantors agree agrees to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration StatementStatement or cease to be Registrable Securities within the meaning of this Agreement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event If:
(i) the Exchange Offer Registration Statement and, if a Shelf Registration Statement is required hereby, the Shelf Registration Statement is not completed filed with the SEC on or prior to the date specified for such filing in Section 2(a) and Section 2(b), respectively,
(ii) the Exchange Offer Registration Statement and, if a Shelf Registration Statement is required hereby, the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Datedate specified for such effectiveness in Section 2(a) and Section 2(b), respectively,
(iii) the Exchange Offer is not consummated on or prior to the date specified in Section 2(a), or
(iv) the Company has filed, and the SEC has declared effective, the Shelf Registration Statement and at any time prior to the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities, other than after all the Registrable Securities have been disposed of under the Shelf Registration Statement or cease to be Registrable Securities, the Shelf Registration Statement ceases to be effective, or fails to be usable for its intended purpose without being succeeded within two business days by a post-effective amendment which cures the failure and that is itself immediately declared effective, then in the case of any failure set forth in (i) - (iv) above, the per annum interest rate on the Securities will be increased increase by 0.25% until the date that the relevant failure is remedied; provided that during any period in which any such failure has continued for more than 90 days, the per annum until interest rate on the Exchange Offer is completed or Securities will increase by an additional 0.25%. In no event will the Shelf Registration Statement is declared effective by additional interest on the SECSecurities exceed 0.50% per annum.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Williams Companies Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed after the Closing Date an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities Notes for Exchange Securities Notes, use its commercially reasonable efforts to have such Registration Statement declared effective by the SEC, and to have such Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their its commercially reasonable efforts to have the Exchange Offer completed consummated not later than 210 180 days after the Closing Date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities Notes validly tendered 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 Registrable Security Note not tendered will remain outstanding and continue to accrue interestinterest in accordance with the terms of the Notes, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security Note exchanged pursuant to the Exchange Offer will be required to surrender such Registrable SecurityNote, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities Notes delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Notes exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities Notes 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 Notes or portions thereof so accepted for exchange by the Company and the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security Note equal in principal amount to the principal amount of the Registrable Securities Notes surrendered by such Holder. The Company and the Guarantors shall use their its commercially reasonable efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Purchaser, if requested by the Initial Purchaser, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Purchaser shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities Notes in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 consummated on or prior to 180 days from after the Closing Date Date, or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Purchaser a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Purchaser in connection with any offering or sale of Registrable SecuritiesNotes, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may beCompany, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Notes and use its commercially reasonable efforts to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company shall file and the Guarantors shall use their its commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities Notes and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities Notes held by the Initial Purchasers Purchaser after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their its commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to all Registrable Notes covered by the Registrable Securities Shelf Registration Statement or such shorter period that will terminate when all of the Registrable Securities Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors Com- pany further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their its commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities Notes copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities Notes pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities Notes pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that the Exchange Offer is not completed consummated, and if a Shelf Registration Statement is required hereby, the Shelf Registration Statement is not declared effective on or prior to 210 180 days from after the Closing Date, the interest rate on the Securities Notes (and the Exchange Notes) will be increased increase by 0.250.5% per annum until the Exchange Offer is completed consummated or the a Shelf Registration Statement is declared effective by the SECeffective.
(e) Without limiting the remedies available to the Initial Purchasers Purchaser and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Purchaser or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Purchaser or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' ’s obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Kingston Plantation Development Corp)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors Issuer shall use their commercially reasonable efforts to cause to be filed file an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors Issuer to the Holders to exchange all of the Registrable Securities for Exchange Securities in a like aggregate principal amount and to use its commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective by 315 days after the date of this Agreement (the "Effectiveness Target Date") and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors Issuer shall commence the Exchange Offer as promptly as practicable after the Exchange Offer Registration Statement has been declared effective by the SEC and use their its commercially reasonable efforts to have the Exchange Offer completed consummated not later than 210 45 days after the Closing Dateearlier of the date on which the Exchange Offer Registration Statement is declared effective and the Effectiveness Target Date (such 45-day period being the "Exchange Period"). The Company and the Guarantors Issuer shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates date of acceptance for exchange (which shall be a period of at least 20 business days (or longer if required by applicable law) from the date such notice is mailed) mailed (the "Exchange DatesDate");
(iii) that any Registrable Security not tendered by a Holder who was eligible to participate in the Exchange Offer will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business business, New York City time, on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors Issuer shall:
(ivi) accept for exchange Registrable Securities or portions thereof validly tendered and not validly properly withdrawn pursuant to the Exchange Offer; and
(iivii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company Issuer and the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder; provided that, in the case of any Registrable Securities held in global form by a depositary, authentication and delivery to such depositary of one or more Exchange Securities in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Company and the Guarantors shall use their commercially reasonable efforts to complete Each Holder (including, without limitation, each Participating Broker-Dealer (as defined)) who participates in the 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 the Exchange Offer. The Exchange Offer shall not will be subject required to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 days from the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given represent to the Company and the GuarantorsIssuer, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement writing (which may be contained in the applicable letter of transmittal) that: (1) 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 a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales Holder of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.Securities,
Appears in 1 contract
Samples: Registration Rights Agreement (Qwest Communications International Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SECSEC (the “Staff”), the Company and the Guarantors shall use their commercially its reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially its reasonable best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder statingHolder, through DTC or otherwise, stating in such Prospectus or accompanying documents in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as reasonably practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable its best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by consummated within 210 days from of the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agents a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agents in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers Placement Agents after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed consummated and the Shelf Registration Statement is not declared effective on or prior to within 210 days from of the Closing Date, the interest rate on the Registrable Securities will be increased by 0.25.5% per annum until the Exchange Offer is completed consummated or the Shelf Registration Statement is declared effective by the SECSEC or upon expiration of the time period referred to in Rule 144(k) under the Securities Act.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' ’s obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Chiquita Brands International Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SECStaff, the Company Issuer and the Guarantors shall use their commercially reasonable efforts to cause to be filed (i) file an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors Issuer to the Holders of each series of Registrable Securities to exchange all of the Registrable Securities of such series for Exchange Securities of the applicable series and (ii) use their commercially reasonable efforts to have the Exchange Offer Registration Statement declared effective by the SEC as promptly as practicable after such Registration Statement remain effective until the closing of the Exchange Offerhas been filed. The Company Issuer and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable efforts to have keep the Exchange Offer completed open for not later less than 210 20 business days (or longer if required by applicable law) after the Closing Datedate notice of the Exchange Offer is mailed to Holders of the Securities. The Company Issuer and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, 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 last Exchange DateDate or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security; provided, however, that, if any of the Registrable Securities are in book-entry form, such Prospectus and accompanying documents shall also specify how the surrender is to be effected in accordance with applicable book-entry procedures; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors Issuer shall:
(i) 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 Issuer and the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security of the applicable series equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder; provided that if any of the Registrable Securities are in book-entry form, the Issuer shall, in co-operation with the Trustee, effect the exchange of Registrable Securities in accordance with applicable book-entry procedures. The Company and the Guarantors Issuer shall use their its commercially reasonable efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SECStaff. The Company and Issuer shall, if requested by the Guarantors shall Initial Purchasers, use its reasonable efforts to inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine that Issuer is not permitted to consummate the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not permitted by applicable law or any applicable interpretation of the Staff, (ii) for any other reason completed by 210 reason, the Exchange Offer is not consummated prior to the later of the date that is 270 days from after the Closing closing of the Merger or 90 days after the Outside Date or (iii) any Beneficial Owner of Registrable Securities notifies the Issuer that (A) it is prohibited by law or SEC policy from participating in the Exchange Offer, (B) it may not resell the Exchange Securities acquired by it in the Exchange Offer has been completed to the public without delivering a prospectus and the prospectus contained in the opinion of counsel for the Initial Purchasers a Exchange Offer Registration Statement must be filed is not appropriate or available for such resales or (C) it is a broker-dealer and a Prospectus must be delivered by owns Securities acquired directly from the Initial Purchasers in connection with any offering Issuer or sale an affiliate of Registrable Securitiesthe Issuer, then the Company Issuer and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable promptly file after such determination, determination date or notice of such opinion of counsel is given to the Company and the GuarantorsIssuer, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have use their commercially reasonable efforts to cause the Shelf Registration Statement to be promptly declared effective by the SEC reasonably promptly but in any event on or prior to 90 days after the obligation to file such Shelf Registration Statement declared effective by arises. Notwithstanding the SEC. In foregoing, in the event the Company Issuer and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iiiiii)(B) of the preceding sentence, the Company Issuer and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) above with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company Issuer and the Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until for a period of at least one year following the expiration of date on which the period referred obligation to in Rule 144(k) with respect to the Registrable Securities file such Shelf Registration Statement arises (or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the such Shelf Registration Statement). The Company Issuer and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors Issuer for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their its commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company Issuer and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company Issuer and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b)) hereof. Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities of any series pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference with respect to such series of Registrable Securities until the offering of Registrable Securities of such series pursuant to such Registration Statement may legally resume. In the event (1) the Issuer fails to consummate the Exchange Offer on or prior to the later of the date that is 270 days after the closing of the Merger or 90 days after the Outside Date (if the Exchange Offer is not completed and then required to be made), (2) if we are obligated to file the Shelf Registration Statement, the Shelf Registration Statement is not declared effective by the SEC on or prior to 210 the later of the date that is 270 days from after the Closing closing of the Merger or 90 days after the Outside Date, or (3) the Shelf Registration Statement or the Exchange Offer Registration Statement is declared effective with respect to a series of Registrable Securities but thereafter ceases to be effective or usable in connection with resales or exchanges of such series of Registrable Securities during the periods specified in this Agreement (each such event referred to in clauses (1), (2) and (3) above, a “Registration Default”), then with respect to the first 90-day period immediately following the occurrence of the first Registration Default, the interest rate on the Securities of such series will be increased by 0.25% per annum on the principal amount of Securities of such series held by such Holder (such additional interest, the “Additional Interest”). The amount of Additional Interest will increase by an additional 0.25% per annum on the principal amount of Securities of such series with respect to each following 90-day period until all Registration Defaults have been cured, up to a maximum amount of Additional Interest for all Registration Defaults of 1.00% per annum. All accrued Additional Interest will be paid by the Exchange Offer is completed Issuer or the Shelf Guarantors on each interest payment date to the Holder of a global note by wire transfer of immediately available funds or by federal funds check and to Holders of certificated notes by wire transfer to the accounts specified by them or by mailing checks to their registered addresses if no such accounts have been specified. Following the cure of all Registration Statement is declared effective by Defaults, the SECaccrual of Additional Interest will cease.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company Issuer and the Guarantors acknowledge that any failure by the Company Issuer or any Guarantor the Guarantors to comply with its their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's obligations of the Issuer and the Guarantors' obligations Guarantors under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Guarantors shall use their commercially its reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially its reasonable best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The 6 5 Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 days from the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the Guarantors, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To and use their reasonable best efforts to have the extent Exchange Offer consummated not prohibited by any applicable law or applicable interpretation of later than 120 days after such effective date. If the Staff of Company and the SECSubsidiary Guarantors effect the Exchange Offer, the Company and the Subsidiary Guarantors shall use their commercially reasonable efforts will be entitled to cause to be filed an close the Exchange Offer Registration Statement covering twenty Business Days after the offer by commencement thereof provided that the Company and the Subsidiary Guarantors to have accepted all the Holders to exchange all of Notes validly tendered in accordance with the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing terms of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable efforts to have the Exchange Offer completed not later than 210 days after the Closing Date. The Company and the Subsidiary Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be dates extend for a period of at least 20 business days Business Days from the date such notice is mailed) (the "Exchange Dates");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interestinterest from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefore or, if no interest has been paid on the Notes, from the date of original issue of the Notes, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. 8 7 As soon as practicable after the last Exchange Date, the Company and the Subsidiary Guarantors shall:
(i) 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 the Guarantors; and
(iii) Subsidiary Guarantors and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Subsidiary Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply in all material respects with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Except as set forth in the immediately succeeding sentence or as customary in similar transactions, the Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff SEC or its staff. As a condition to its participation in the Exchange Offer pursuant to the terms of this Agreement, each Holder of Registerable Securities shall furnish, upon the request of the SECCompany but prior to consummation of the Exchange Offer, a written representation to the Company and the Subsidiary Guarantors (which may be contained in the letter of transmittal contemplated by the Exchange Offer) to the effect that (i) it is not an affiliate of the Company, (ii) it is not engaged in, does not intend to engage in, and has no arrangement or understanding with any person to participate in, and has no arrangement or understanding with any person to participate in, a distribution of the Exchange Securities to be issued in the Exchange Offer and (iii) it is acquiring the Exchange Securities in the ordinary course of its business. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SECSEC or its staff, or (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable SecuritiesMay 19, 1998, the Company and the Guarantors shall use their commercially its reasonable best efforts 9 8 to cause to be filed as soon as practicable after such determination, date determination or notice of such opinion of counsel is given to the Company and the Guarantorsdate, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Subsidiary Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration second anniversary of the period referred to in Rule 144(k) with respect to the Registrable Securities Closing Date or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Subsidiary Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors Subsidiary Guarantor, for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Subsidiary Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Subsidiary Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company Holdings and the Guarantors ICG shall use their commercially reasonable efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company Holdings and the Guarantors ICG to the Holders to exchange all of the Registrable Securities Notes for Exchange Securities and Notes, to have such Registration Statement declared effective by the SEC and remain effective until the closing of the Exchange OfferOffer and to consummate the Exchange Offer on or prior to September 11, 1997. The Company Holdings and the Guarantors ICG shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable best efforts to have the Exchange Offer completed not later than 210 days after the Closing Dateconsummated on or prior to September 11, 1997. The Company Holdings and the Guarantors ICG shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities Notes validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business 30 days from the date such notice is mailed) (the "Exchange Dates");
(iii) that any Registrable Security Note not tendered will remain outstanding and continue to accrete in value (until March 15, 2002 and thereafter will accrue interest), but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security Note exchanged pursuant to the Exchange Offer will be required to surrender such Registrable SecurityNote, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities Notes delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Notes exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors Holdings shall:
(i) accept for exchange Registrable Securities Notes 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 Notes or portions thereof so accepted for exchange by the Company Holdings and the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security Note equal in principal amount to the principal amount of the Registrable Securities Notes surrendered by such Holder. The Company Holdings and the Guarantors ICG shall use their commercially reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors Holdings shall inform the Initial Purchasers Placement Agent of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agent shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities Notes in the Exchange Offer.
(b) In the event that (i) the Company Holdings and the Guarantors ICG determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed by 210 days from the Closing Date consummated on or prior to September 11, 1997 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agent a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agent in connection with any offering or sale of Registrable SecuritiesNotes, the Company Holdings and the Guarantors ICG shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company Holdings and the GuarantorsICG, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Notes and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company Holdings and the Guarantors ICG are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company Holdings and the Guarantors ICG shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities Notes and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities Notes held by the Initial Purchasers Placement Agent after completion of the Exchange Offer. The Company Holdings and the Guarantors ICG agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when until all of the Registrable Securities Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company Holdings and the Guarantors ICG further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company Holdings and the Guarantors ICG for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicablepracticable thereafter. The Company Holdings and the Guarantors ICG agree to furnish to the Holders of Registrable Securities Notes copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company Holdings and the Guarantors ICG shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared -------- ------- effective, the offering of Registrable Securities Notes pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities Notes pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event the Exchange Offer is not completed consummated and the Shelf Registration Statement is not declared effective on or prior to 210 days from September 11, 1997, interest (in addition to the Closing Dateaccrual of original issue discount during the period ending March 15, 2002 and in addition to the interest rate otherwise due on the Securities Notes after such date) will accrue, at an annual rate of 0.5% of Accreted Value on the preceding semiannual payment date, on the Notes from September 11, 1997, payable in cash semiannually in arrears on each March 15 and September 15, commencing March 15, 1998; provided that if a Shelf Registration -------- Statement is required solely by the matters referred to in clause (iii) of the first sentence of Section 2(b), such increase in interest rate shall be increased payable only to the Placement Agent, with respect to Notes held by 0.25% per annum until the Exchange Offer is completed or the it, and only with respect to any period (after September 11, 1997) during which such Shelf Registration Statement is declared effective by the SECnot effective.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agent and the Holders, the Company Holdings and the Guarantors ICG acknowledge that any failure by the Company or any Guarantor Holdings and ICG to comply with its their respective obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agent or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agent or any Holder may obtain such relief as may be required to specifically enforce the CompanyHoldings' and ICG's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Icg Communications Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Subsidiary Guarantors shall use their commercially reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Subsidiary Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Subsidiary Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable best efforts to have the Exchange Offer completed consummated not later than 210 60 days after such effective date; PROVIDED, HOWEVER, the Closing DateCompany and the Subsidiary Guarantors shall not commence an Exchange Offer prior to June 2, 2001. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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) and in the manner specified in the notice prior to the close of business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his its election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable its best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date August 8, 2001 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agents a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agents in connection with any offering or sale of Registrable Securities, the Company and the Guarantors shall use their commercially reasonable its best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable its best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers Placement Agents after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially reasonable its best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; providedPROVIDED, howeverHOWEVER, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that either the Exchange Offer is not completed and consummated or the Shelf Registration Statement Statement, if required hereby, is not declared effective on or prior to 210 days from the Closing DateAugust 8, 2001, the interest rate on the New Securities will be increased by 0.250.5% per annum until the Exchange Offer is completed consummated or the Shelf Registration Statement Statement, if required hereby, is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SECStaff, the Company Issuers and the Guarantors shall use their commercially reasonable efforts to cause to be filed (i) file an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors Issuers to the Holders to exchange all of the Registrable Securities for Exchange Securities and (ii) use their reasonable best efforts to have the Exchange Offer Registration Statement declared effective by the SEC as promptly as practicable after such Registration Statement remain effective until the closing of the Exchange Offerhas been filed. The Company and the Guarantors Issuers shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable efforts to have the Exchange Offer completed not later than 210 days after the Closing DateSEC. The Company and the Guarantors Issuers shall commence the Exchange Offer by mailing transmitting the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered 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 Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; provided, however, that, if any of the Registrable Securities are in book-entry form, such Prospectus and accompanying documents shall also specify how the surrender is to be effected in accordance with applicable book-entry procedures; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors Issuers shall:
(i) 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 Issuers and the Guarantors; and
(iii) Guarantors and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder; provided that if any of the Registrable Securities are in book-entry form, the Issuers shall, in co-operation with the Trustee, effect the exchange of Registrable Securities in accordance with applicable book-entry procedures. The Company Issuers and the Guarantors shall use their commercially reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SECStaff. The Company and Issuers shall, if requested by the Guarantors shall Initial Purchaser, use their reasonable efforts to inform the Initial Purchasers Purchaser of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Purchaser shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company Issuers and the Guarantors determine that are not permitted to consummate the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not permitted by applicable law or any applicable interpretation of the Staff, (ii) for any other reason completed by 210 reason, the Exchange Offer is not consummated on or before 120 days from following the Closing Date date of this Agreement, or (iii) any Beneficial Owner of Registrable Securities notifies the Issuers that (A) it is prohibited by law or SEC policy from participating in the Exchange Offer, (B) it may not resell the Exchange Securities acquired by it in the Exchange Offer has been completed to the public without delivering a prospectus and the prospectus contained in the opinion of counsel for the Initial Purchasers a Exchange Offer Registration Statement must be filed is not appropriate or available for such resales; or (C) it is a broker-dealer and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, owns Securities acquired directly from the Company or an affiliate of the Company, then the Issuers and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable file after such determination, determination date or notice of such opinion of counsel is given to the Company and the GuarantorsIssuers, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such use their reasonable best efforts to cause the Shelf Registration Statement to be declared effective by the SECSEC as promptly as possible after the obligation to file such shelf registration statement arises. In the event the Company and the Guarantors Issuers are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iiiiii)(B) of the preceding sentence, the Company Issuers and the Guarantors shall use their commercially reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers Purchaser after completion of the Exchange Offer. The Company Issuers and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration earlier of (i) two years from the period referred to in Rule 144(kClosing Date and (ii) with respect to the date on which all Registrable Securities or such shorter period that will terminate when all registered thereunder are disposed of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statementin accordance therewith. The Company Issuers and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company Issuers and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors Issuers agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors Issuers shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's ’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event (1) the Issuers and the Guarantors fail to consummate the Exchange Offer is not completed and on or before 120 days following the date of this Agreement; or (2) the Shelf Registration Statement or the Exchange Offer Registration Statement is not declared effective on but thereafter ceases to be effective or prior usable in connection with resales or exchanges of Registrable Securities during the periods specified in this Agreement (each such event referred to 210 days from in clauses (1) and (2) above, a “Registration Default”), then with respect to the Closing Datefirst 90-day period immediately following the occurrence of the first Registration Default, the interest rate on the Securities will be increased by 0.25% per annum on the principal amount of Securities held by such Holder. The amount of additional interest will increase by an additional 0.25% per annum on the principal amount of Securities with respect to each 90-day period until all Registration Defaults have been cured, up to maximum amount of additional interest for all Registration Defaults of 1.0% per annum. All accrued additional interest will be paid by the Exchange Offer is completed Issuers or the Shelf Guarantors on each interest payment date to the Holder of a global note by wire transfer of immediately available funds or by federal funds check and to Holders of certificated notes by wire transfer to the accounts specified by them or by mailing checks to their registered addresses if no such accounts have been specified. Following the cure of all Registration Statement is declared effective by Defaults, the SECaccrual of additional interest will cease.
(e) Without limiting the remedies available to the Initial Purchasers Purchaser and the Holders, the Company Issuers and the Guarantors acknowledge that any failure by the Company any Issuer or any Guarantor to comply with its their respective obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Purchaser or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Purchaser or any Holder may obtain such relief as may be required to specifically enforce the Company's obligations of the Issuers and the Guarantors' obligations Guarantors under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Subsidiary Guarantors shall use their commercially reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Subsidiary Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Subsidiary Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use their commercially reasonable best efforts to have the Exchange Offer completed consummated not later than 210 60 days after the Closing Datesuch effective date. The Company and the Subsidiary Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days Business Days from the date such notice is mailed) (the "Exchange Dates");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) 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 the Guarantors; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Company and the Subsidiary Guarantors shall use their commercially reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Subsidiary Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the Closing Date January 24, 1998 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers Placement Agents a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers Placement Agents in connection with any offering or sale of Registrable Securities, the Company and the Subsidiary Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Subsidiary Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration second anniversary of the period referred to in Rule 144(k) with respect to the Registrable Securities Closing Date or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. Notwithstanding the foregoing, during any consecutive 365-day period, the Company will have the ability to suspend the availability of the Shelf Registration Statement for up to two periods of up to 30 consecutive days each (except that none of such periods may occur during the 60-day period immediately prior to the maturity of the Securities) if the Company's Board of Directors determines in good faith that there is a valid purpose for the suspension. The Company and the Subsidiary Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Subsidiary Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Subsidiary Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Subsidiary Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff staff of the SEC, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and shall use their commercially reasonable best efforts to have the Exchange Offer completed consummated not later than 210 225 days after the Closing Date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law,:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 30 business days from the date such notice is mailed) (collectively, the "Exchange Dates");
(iii) that any Registrable Security not tendered will remain outstanding and Notes not tendered will continue to accrue interest, but that any Registrable Security not tendered will not retain any rights under this Registration Rights AgreementAgreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein);
(iv) that Holders electing to have a Registrable Security exchanged for an Exchange Security pursuant to the Exchange Offer will be required to surrender such Registrable Security, 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 such notice prior to the close of business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their electionelection to exchange a Registrable Security for an Exchange Security, not later than the close of business on the last Exchange Date, by 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 Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Registrable Securities exchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors each Guarantor shall:
(i) accept for exchange Registrable Securities or portions thereof tendered and not validly withdrawn pursuant to under 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 the Guarantors; and
(iii) Guarantors and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities Notes surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the 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 the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff staff of the SEC, (ii) the Exchange Offer is not for any other reason completed consummated by 210 days from the 225th day after the Closing Date or Date, (iii) the Exchange Offer has been completed and and, in the opinion of counsel for the Initial Purchasers Purchasers, a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, (iv) any Registrable Securities validly tendered pursuant to the Exchange Offer are not exchanged for Exchange Securities within 10 days of being accepted in the Exchange Offer, (v) any Initial Purchaser so requests with respect to Registrable Securities that are not eligible to be exchanged in the Exchange Offer, (vi) the Exchange Offer is not available to any Holder, or (vii) any Holder of Registrable Securities that participates in the Exchange Offer does not receive freely transferable Exchange Securities in exchange for its Registrable Securities, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after (but in no event more than 45 days after) such determination, date or notice of such opinion of counsel is given to the Company and the GuarantorsCompany, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective for the lesser of two years from the Closing Date or until the expiration all of the period referred to in Rule 144(k) with respect to the Registrable Securities are eligible for resale pursuant to Rule 144 under the 1933 Act or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration StatementStatement (the "Effectiveness Period"). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration registrations or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the registration of Registrable Securities and/or Exchange Securities pursuant to Section 2(a) and Section 2(b)) hereof. Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event the Exchange Offer is not completed and the Shelf Registration Statement is not declared effective on or prior to 210 days from the Closing Date, the interest rate on the Securities will be increased by 0.25% per annum until the Exchange Offer is completed or the Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
