Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes. (b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall: (1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents; (2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York; (3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and (4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall: (1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange; (2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and (3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter. (c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 3 contracts
Sources: Registration Rights Agreement (Beazer Homes Usa Inc), Registration Rights Agreement (Beazer Homes Usa Inc), Registration Rights Agreement (Beazer Homes Usa Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the The Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration StatementEXCHANGE OFFER REGISTRATION STATEMENT”) within 150 days after the Issue Date with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange OfferEXCHANGE OFFER”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange NotesEXCHANGE NOTES”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain be subject to terms with respect to transfer restrictions or Liquidated Damages Additional Interest upon a Registration Default), which Exchange Notes may be issued, at the Company’s option, under the Indenture or any other indenture or supplemental indenture satisfying the requirements of this Agreement, (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act within 240 days after the Issue Date and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 270 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company Issuers will offer the Exchange Notes in exchange for surrender of the Notes. The Company Issuers shall keep the Exchange Offer open for not less than 20 Business Days 30 days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company Issuers in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (of the Company or any Guarantor as defined in by Rule 405 under of the Securities Act) of any Issuer or, or if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus meeting the requirements of the Securities Act in connection with any re-sale resale of such Exchange Notes.
(b) The Company Issuers and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating BrokerPARTICIPATING BROKER-DealerDEALER”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuers and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accountsaccounts (other than a resale of an unsold allotment resulting from the original offering of the Notes), so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested in writing prior to the expiration of the Exchange Offer by a Participating Broker-Dealer (a “Requesting Participating BrokerREQUESTING PARTICIPATING BROKER-DealerDEALER”), the Issuers agree to use their commercially reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 45 days after the date on which the Exchange Offer Registration Statement is declared effectiveeffective or, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof 4 hereof, such longer period (such period, the “Applicable PeriodAPPLICABLE PERIOD”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company Issuers shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company Issuers shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to the 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn by the Holders pursuant to the Exchange Offer and the Private ExchangeOffer;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each such Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem Company deems necessary for the consummation of the Exchange Offer or Private ExchangeOffer. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) or such other indenture or supplemental indenture as shall fulfill the requirements of this Agreement and the TIA and which, in either case, has shall have been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture applicable indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any mattersupplemental indenture.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 3 contracts
Sources: Registration Rights Agreement (Alere Inc.), Registration Rights Agreement (Alere Inc.), Registration Rights Agreement (Alere Inc.)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the The Issuers shall (i) file a Registration Statement (the “"Exchange Offer Registration Statement”") within 105 days after the Issue Date with the Commission on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “"Exchange Notes”") that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act within 165 days after the Issue Date and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 195 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company Issuers will offer the Exchange Notes in exchange for surrender of the Notes. The Company Issuers shall keep the Exchange Offer open for not less than 20 Business Days 30 days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company Issuers in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer Act or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iviii) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and Notes, (viv) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange NotesNotes and (v) such Holder has full power and authority to transfer the Notes in exchange for the Exchange Notes and that the Issuers will acquire good and unencumbered title thereto free and clear of any liens, restrictions, charges or encumbrances and not subject to any adverse claims.
(b) The Company Issuers and the Initial Purchasers Purchaser acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “"Participating Broker-Dealer”") may be deemed to be an “"underwriter” " within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuers and the Initial Purchasers Purchaser also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “"Requesting Participating Broker-Dealer”"), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up not to 210 exceed 60 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof (such period, the “"Applicable Period”"), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company Issuers in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company Issuers shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, the Initial Purchaser or any Holder Holder, as the case may be, holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company Issuers upon the request of the Initial Purchaser or any such Holder Holder, as the case may be, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchaser or any such Holder, as the case may be, in exchange (the “"Private Exchange”") for such Notes held by the Initial Purchaser or any such Holder, as the case may be, a like principal amount of notes (the “"Private Exchange Notes”") of the Company Issuers that are identical in all material respects to the Exchange NotesNotes except that the Private Exchange Notes may be subject to restrictions on transfer and bear a legend to such effect. The Private Exchange Notes shall be issued pursuant to the same indenture Indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. For each Note surrendered in the Exchange Offer, the Holder will receive an Exchange Note having a principal amount equal to that of the surrendered Note. Interest on each Exchange Note and Private Exchange Note issued pursuant to the Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the Issue Date. Upon consummation of the Exchange Offer, the Issuers shall have no further registration obligations other than the Issuers' continuing registration obligations with respect to (i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which clause (c)(iii) of this Section 2 applies. In connection with the Exchange Offer, the Company Issuers shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn by the Holders pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each such Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Registrable Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture indentures shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters requiring the vote or consent of the holders of the Exchange Notes, the Private Exchange Notes and the Notes under the Indenture as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 195 days of the Issue Date, (iii) any Holder (Holder, other than the Initial Purchasers) Purchaser, is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder Offer or does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), the Issuers within the meaning of the Securities Act) or (viv) the Initial Purchasers Purchaser so request requests with respect to Notes or Private Exchange Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (viiv) of this sentence, a “"Shelf Filing Event”"), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (Wh Capital Corp), Registration Rights Agreement (Wh Holdings Cayman Islands LTD)
Exchange Offer. (a) Unless Upon the occurrence of an Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) in accordance with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the CommissionRights Agreement, the Company will offer issue and, upon receipt of a Company Order in accordance with Section 2.05 hereof, the Exchange Trustee will authenticate (i) Unrestricted Definitive Subordinated Notes in exchange for surrender an aggregate principal amount equal to the principal amount of the Notes. The Company shall keep the Restricted Definitive Subordinated Notes tendered in such Exchange Offer open for acceptance by Persons that each certify in the applicable Letters of Transmittal that (a) it is not less than 20 Business Days an affiliate (or longer if required by applicable lawas defined in Rule 405 under the Securities Act) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company in writing that Company, (ib) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (iic) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes, and (d) it is not acting on behalf of any Person who could not truthfully make the statements set forth in clauses (a), (b) and (c) immediately above, and shall be required to make such other representations as may be reasonably necessary under applicable Commission rules, regulations or interpretations to render the use of Form S-4 or another appropriate form under the Securities Act available, or, if permitted by the Company, (ii) one or more Unrestricted Global Subordinated Notes in violation an aggregate principal amount equal to the principal amount of the provisions beneficial interests in the Restricted Global Subordinated Notes tendered in such Exchange Offer for acceptance by Persons that each certify in the applicable Letters of the Securities Act, Transmittal that (iiia) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer orthe Company, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes to be received by it will be acquired in the Exchange Offer ordinary course of business, (a “Participating Broker-Dealer”c) may be deemed it has no arrangement with any Person to be an “underwriter” participate in the distribution (within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, and (d) it is not acting on behalf of any Person who could not truthfully make the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
statements set forth in clauses (a), (b) and (c) In immediately above, and shall be required to make such other representations as may be reasonably necessary under applicable Commission rules, regulations or interpretations to render the event that (i) any changes in law use of Form S-4 or another appropriate form under the Securities Act available. Concurrently with the issuance of such Unrestricted Global Subordinated Notes upon exchange of Restricted Global Subordinated Notes, the Trustee will cause the aggregate principal amount of the applicable interpretations Restricted Global Subordinated Notes to be reduced accordingly, and the Company will execute and the Trustee will authenticate and deliver to the Persons designated by the Holders of Restricted Definitive Subordinated Notes so accepted Unrestricted Definitive Subordinated Notes in the staff applicable principal amount. Any Subordinated Notes that remain outstanding after the consummation of the Commission do not permit the Issuers to effect the such Exchange Offer, (ii) for any reason the and Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating Notes issued in the connection with such Exchange Offer, (ivwill be treated as a single class of securities under this Indenture. For the avoidance of doubt, the only remedy for breach of registration rights is the Additional Interest set forth in Section 2(e) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereofRights Agreement.
Appears in 2 contracts
Sources: Indenture (Green Bancorp, Inc.), Indenture (Green Bancorp, Inc.)
Exchange Offer. (a) Unless the Exchange Offer would violate not be permitted by applicable law or any applicable interpretation of the staff of the CommissionCommission policy, the Issuers shall will:
(i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and use all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under filed with the Securities Act and Commission, after the Closing Date, a Registration Statement; and
(iiiii) use their all commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer cause such Registration Statement being declared to become effective by under the Commission, the Company will offer the Exchange Notes in exchange for surrender Act within 365 days of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange NotesClosing Date.
(b) The Company and Upon the Initial Purchasers acknowledge that the staff effectiveness of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell Statement, unless the Exchange Notes, without naming the Participating Broker-Dealers Offer would not be permitted by applicable law or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”)Commission policy, the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in promptly commence the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange .
(the “Private Exchange”c) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company Issuers shall:
(1i) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2ii) keep the Exchange Offer open for not less than 20 Business Days and not more than 30 Business Days after the date notice thereof is mailed to the Holders (or, in each case, longer if required by applicable law);
(iii) use their best efforts to keep the Exchange Offer Registration Statement continuously effective, supplemented and amended as required, under the Act in order to ensure that it is available for sales of Exchange Notes by Exchanging Dealers during the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Exchange Offer with an address in the Borough of ManhattanManhattan in New York City, The City which may be the Trustee, the Exchange Notes Trustee or an Affiliate of New Yorkeither of them;
(3v) permit Holders to withdraw tendered Notes Securities at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain is open;
(vi) prior to effectiveness of the Exchange Offer Registration Statement, provide a supplemental letter to the Commission (A) stating that the Issuers are conducting the Exchange Offer in reliance on the position of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (pub. avail. June 5, 1991); and (B) including a representation that the Issuers have not entered into any arrangement or understanding with any Person to distribute the Exchange Notes to be received in the Exchange Offer and that, to the best of the Issuers’ information and belief, each Holder participating in the Exchange Offer is acquiring the Exchange Notes in the ordinary course of business and has no arrangement or understanding with any Person to participate in the distribution of the Exchange Notes; and
(4vii) otherwise comply in all material respects with all applicable laws, rules and regulations. .
(d) As soon as practicable after the close of the Exchange Offer and the Private Exchange, if anyOffer, the Company Issuers shall:
(1i) accept for exchange all Notes validly Securities tendered and not validly withdrawn pursuant to the Exchange Offer and the Private ExchangeOffer;
(2ii) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t4(s) all Notes Securities so accepted for exchange; and
(3iii) cause the Exchange Notes Trustee promptly to authenticate and deliver promptly to each Holder of Notes, Securities a principal amount of Exchange Notes or Private Exchange Notes, as equal to the case may be, equal in principal amount to of the Notes Securities of such Holder so accepted for exchange. The Exchange Offer .
(e) Each Holder hereby acknowledges and the Private Exchange shall not be subject to agrees that any conditions, other than that (i) Broker-Dealer and any such Holder using the Exchange Offer or Private Exchangeto participate in a distribution of the Exchange Notes (x) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (pub. avail. June 5, 1991), as interpreted in the case may beCommission’s letter to Shearman & Sterling dated July 2, does not violate applicable law or any applicable interpretation 1993 and similar no-action letters; and (y) must comply with the registration and prospectus delivery requirements of the staff Act in connection with any secondary resale transaction, which must be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K under the CommissionAct if the resales are of Exchange Notes obtained by such Holder in exchange for Securities acquired by such Holder directly from any Issuer or one of its Affiliates. Accordingly, (ii) no action or proceeding shall have been instituted or threatened each Holder participating in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect be required to represent to the Issuers and (iii) all governmental approvals shall have been obtainedthat, which approvals at the Issuers (based upon advice time of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.Offer:
(c) In the event that (i) any changes Exchange Notes received by such Holder will be acquired in law or the applicable interpretations ordinary course of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, business;
(ii) for such Holder will have no arrangement or understanding with any reason Person to participate in the distribution of the Securities or the Exchange Notes within the meaning of the Act; and
(iii) such Holder is not an Affiliate of any Issuer.
(f) If any Initial Purchaser determines that it is not eligible to participate in the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that havethe exchange of Securities constituting any portion of an unsold allotment, or that are reasonably likely to be determined to haveat the request of such Initial Purchaser, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file issue and deliver to such Initial Purchaser or the Person purchasing Exchange Notes registered under a Shelf Registration Statement as contemplated by Section 3 hereof from such Initial Purchaser, in exchange for such Securities, a like principal amount of Exchange Notes. The Issuers shall use their best efforts to cause the CUSIP Service Bureau to issue the same CUSIP number for such Exchange Notes as for Exchange Notes issued pursuant to Section 3 hereofthe Exchange Offer.
Appears in 2 contracts
Sources: Registration Rights Agreement (NRG Yield LLC), Registration Rights Agreement (NRG Yield, Inc.)
Exchange Offer. (a) Unless To the Exchange Offer would violate extent not prohibited by any applicable law or any applicable interpretation interpretations of the staff of the CommissionSEC, with respect to any Notes, if any, that on the Registration Trigger Date are Transfer Restricted Notes, the Issuers Company and the Subsidiary Guarantors shall use their reasonable best efforts to (iX) file a Registration Statement (the “cause to be filed and to become effective an Exchange Offer Registration Statement”) with Statement covering an offer to the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) Holders to exchange any and all of the Registrable Transfer Restricted Notes for a like aggregate principal amount of notes Exchange Notes and (including Y) have such Registration Statement remain effective until 180 days after the guarantees with respect thereto, last Exchange Date for use by one or more Participating Broker-Dealers if one or more broker-dealers notify the “Exchange Notes”) Company in writing that are identical in all material respects to they anticipate that they will be Participating Broker-Dealers. The Company and the Notes (except that Subsidiary Guarantors shall commence the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause Offer promptly after the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being is declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep SEC and use their reasonable best efforts to complete the Exchange Offer open not later than 45 days after such effective date.
(b) The Company and the Subsidiary Guarantors shall, for not less than 20 Business Days (or longer the benefit of the Holders, at the Company’s and Subsidiary Guarantors’ cost, commence the Exchange Offer, if any, by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) after the date notice of that the Exchange Offer is mailed being made pursuant to Holders. Each this Agreement and that all Transfer Restricted Notes validly tendered and not properly withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 Business Days from the date such notice is mailed) (the “Exchange Dates”);
(iii) that any Transfer Restricted Notes not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder that participates in electing to have a Transfer Restricted Note exchanged pursuant to the Exchange Offer will be required to represent (A) surrender such Transfer Restricted Note, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the Depositary, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Transfer Restricted Notes delivered for exchange and a statement that such Holder is withdrawing its election to have such Transfer Restricted Notes exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the Depositary.
(c) Upon the effectiveness of the Exchange Offer Registration Statement, if any, the Company and the Subsidiary Guarantors shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Transfer Restricted Notes for Exchange Notes (assuming that such Holder makes representations and warranties to the Company in writing that (ia) it is not an affiliate of the Company within the meaning of Rule 405 under the 1933 Act, (b) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (ivc) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, a the distribution of the Exchange Notes and Notes, (vd) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Transfer Restricted Notes that were acquired as a result of market-making or other trading activities, it then such broker-dealer will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(bor, to the extent permitted by law, make available a Prospectus) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers and (e) it has no arrangements or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection understandings with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled Person to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery distribution of the Exchange Transfer Restricted Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to or the Exchange Notes. The Private ) to transfer such Exchange Notes shall be issued pursuant to from and after their receipt without any limitations or restrictions under the same indenture as the Exchange Notes 1933 Act and bear the same CUSIP number as the under state securities or blue sky laws.
(d) The Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA Trust Indenture Act of 1939, as amended (the “TIA”), or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(ce) In As soon as practicable after the event that close of the Exchange Offer, the Company and the Subsidiary Guarantors shall:
(i) accept for exchange all Transfer Restricted Notes duly tendered and not validly withdrawn pursuant to the Exchange Offer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) deliver to the Trustee for cancellation all Transfer Restricted Notes so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver Exchange Notes to each Holder of Transfer Restricted Notes so accepted for exchange in a principal amount equal to the principal amount of the Transfer Restricted Notes of such Holder so accepted for exchange.
(f) Interest on each Exchange Note, including Additional Interest, will accrue (a) from the later of (i) the last date on which interest was paid on the Transfer Restricted Notes surrendered in exchange therefor or (ii) if the Transfer Restricted Notes are surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (b) if no interest has been paid on the Transfer Restricted Notes, from the date of issuance. The. Company 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, but not the obligation, to contact such Holders and otherwise facilitate the tender of Transfer Restricted Notes in the Exchange Offer.
(g) The Company and the Subsidiary Guarantors shall use their 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 Offer shall not be subject to any changes in conditions, other than (1) the Exchange Offer does not violate any applicable law or the applicable interpretations of the staff of the Commission do not permit SEC, (2) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency with respect to the Issuers to effect Exchange Offer and (3) all governmental approvals shall have been obtained that the Company deems necessary for the consummation of the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (MGM Resorts International), Registration Rights Agreement (MGM Resorts International)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the The Co-Issuers shall (i) file within 90 days of the Issue Date a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages Additional Interest upon a Registration Default), ) and (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 210 days after the Issue Date. Upon To the extent not prohibited by any applicable law or applicable interpretation of the Commission, upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer Co-Issuers will: (i) commence the Exchange Notes in exchange for surrender of Offer as soon as practicable after the Notes. The Company shall Exchange Offer Registration Statement is declared effective, (ii) keep the Exchange Offer open for not less than 20 Business Days business days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. , and (iii) use all commercially reasonable efforts to issue within 30 business days, or longer, if required by the federal securities laws, after the date on which the Exchange Offer Registration Statement is declared effective Exchange Notes in exchange for Notes tendered prior thereto in the Exchange Offer and to otherwise consummate the Exchange Offer Each Holder that participates in the Exchange Offer will be required to represent to the Company Co-Issuers in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer Act or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iviii) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and Notes, (viv) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus comply with the applicable provisions of the Securities Act in connection with any re-sale resale of such Exchange Notes, (v) such Holder has full power and authority to transfer the Notes in exchange for the Exchange Notes and that the Co-Issuers will acquire good and unencumbered title thereto free and clear of any liens, restrictions, charges or encumbrances and not subject to any adverse claims; and (vi) such Holder is not an “affiliate” (as defined in Rule 405 promulgated under the Securities Act) of the Co-Issuers.
(b) The Company Co-Issuers and the Initial Purchasers Purchaser acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Regulation S Notes). The Company Co-Issuers and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Co-Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up not to 210 exceed 120 days after the date on which the Exchange Offer Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company Co-Issuers in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company Co-Issuers shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, the Initial Purchaser or any Holder Holder, as the case may be, holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company Co-Issuers upon the request of the Initial Purchaser or any such Holder Holder, as the case may be, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasers or any such Holder, as the case may be, in exchange (the “Private Exchange”) for such Notes held by the Initial Purchaser or any such Holder, as the case may be, a like principal amount of notes (the “Private Exchange Notes”) of the Company Co-Issuers that are identical in all material respects to the Exchange NotesNotes except that the Private Exchange Notes may be subject to restrictions on transfer and bear a legend to such effect. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the corresponding Exchange Notes. For each Note surrendered in the Exchange Offer, the Holder will receive an Exchange Note having a principal amount equal to that of the surrendered Note. Interest on each Exchange Note and Private Exchange Note issued pursuant to the Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the Issue Date. Upon consummation of the Exchange Offer in accordance with this Section 2, the Co-Issuers shall have no further registration obligations other than the Co-Issuers’ continuing registration obligations with respect to (i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which clause (c)(iii) of this Section 2 applies. In connection with the Exchange Offer, the Company Co-Issuers shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company Co-Issuers shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn by the Holders pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each such Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Registrable Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Co-Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Co-Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Co-Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that that:
(i) any changes in the Co-Issuers are not:
(A) required to file the Exchange Offer Registration Statement;
(B) permitted to consummate the Exchange Offer because the Exchange Offer is not permitted by applicable law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, Commission;
(ii) for any reason the Exchange Offer is not consummated within 180 240 days of the Issue Date, ;
(iii) any a Holder notifies the Company prior to the 20th Business Day following consummation of the Exchange Offer that:
(other than the Initial PurchasersA) it is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible policy from participating in the Exchange Offer, ;
(B) it may not resell the exchange notes acquired by it in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales; or
(C) it is a broker-dealer and owns notes acquired directly from the Issuers or an affiliate of the Issuers; or
(iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers Purchaser so request requests with respect to Regulation S Notes or corresponding Private Exchange Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any and such Holder of Private Exchange Notes so requests notifies the Company. (each such event referred to in clauses (i) through (viiv) of this sentence, a “Shelf Filing Event”), then the Co-Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (Forbes Energy Services LLC), Registration Rights Agreement (Forbes Energy Services Ltd.)
Exchange Offer. (a) Unless the Exchange Offer would violate not be permitted by applicable law laws or any applicable interpretation interpretations of the staff of the CommissionSEC, the Issuers and the Guarantors shall use their commercially reasonable efforts to (i) prepare and file with the SEC a Registration Statement registration statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form under the Securities Act with respect to a registered an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange any and all of for the Registrable Notes for Notes, a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared become effective under on or before the Securities Act and Effectiveness Date, (iii) use their commercially reasonable efforts to consummate keep the Exchange Registration Statement effective until the consummation of the Exchange Offer within 180 days after the Issue Date. Upon in accordance with its terms, and (iv) commence the Exchange Offer and issue on or before the 30th Business Day after the date on which the Exchange Registration Statement being is declared effective by the Commissioneffective, the Company will offer the Exchange Notes in exchange for surrender all Notes validly tendered prior thereto in the Exchange Offer. Other than as set forth in this Agreement, including in Section 2(d) hereto, the Exchange Offer shall not be subject to any conditions.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of the Indenture or a trust indenture that is identical to the Indenture.
(c) Interest on the Exchange Notes will accrue from the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes. .
(d) The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed Issuers may require each Holder as a condition to Holders. Each Holder that participates participation in the Exchange Offer will be required to represent to the Company in writing that (i) that any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it that at the time of the commencement and consummation of the Exchange Offer such Holder has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that it is not an affiliate “affiliate” of the Issuers (as defined in within the meaning of Rule 405 under of the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, a the distribution of Exchange the Notes and (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Issuers and the Guarantors shall include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that will receive is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer activity (a “Participating Broker-Dealer”) may be deemed ). Such “Plan of Distribution” section shall also allow, to be an “underwriter” within the meaning extent permitted by applicable policies and regulations of the Securities Act and must deliver a SEC, the use of the Prospectus by all Persons subject to the prospectus meeting the delivery requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from Act, including, to the original offering of the Notes). The Company extent so permitted, all Participating Broker-Dealers, and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing include a statement to describing the above effect and the means by manner in which Participating Broker-Dealers may resell the Exchange Notes, without naming . The Issuers and the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to Guarantors shall use their commercially reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a and to amend and supplement the Prospectus contained therein, in order to keep such Prospectus current during the period described in Section 4(a)(3) of up the Securities Act and Rule 174 thereunder that is applicable to 210 days after the date on which the transactions by brokers or dealers with respect to Notes or Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof Notes (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange .
(the “Private Exchange”f) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company Issuers and the Guarantors shall:
(1i) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal that is an exhibit to the Exchange Registration Statement, and any related documents;
(2ii) keep the Exchange Offer open for not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) and until the Issuers have accepted all Notes validly tendered in accordance with the terms of the Exchange Offer;
(iii) utilize the services of a depositary depository for the Exchange Offer with an address in the Borough of Manhattan, The the City of New York, which may be the Trustee or an affiliate thereof;
(3iv) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4v) otherwise comply in all material respects with all applicable laws, rules and regulations. .
(g) As soon as practicable after the close of the Exchange Offer Offer, the Issuers and the Private Exchange, if any, the Company Guarantors shall:
(1i) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchangenot validly withdrawn;
(2ii) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3iii) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange tendering such Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. .
(h) The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either caseIndenture, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall which will provide that the Exchange Notes shall will not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide and that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as Notes, if any, will be deemed one class and that none of security (subject to the provisions of the Exchange Notes, Indenture) and entitled to participate in any Note Guarantee (as such term is defined in the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class Indenture) on any matteran equal and ratable basis.
(c) In the event that (i) any changes in law If:
(1) the Issuers and the Guarantors determine that applicable laws or the applicable interpretations of the staff of the Commission do SEC would not permit the Issuers to effect consummation of the Exchange Offer, Offer on or prior to the 30th Business Day following the Effectiveness Date;
(ii2) for any reason the Exchange Offer is not consummated within 180 days on or prior to the 90th Business Day following the Effectiveness Date (provided that this shall not affect the obligations of the Issue Date, Issuers to pay Additional Interest after the 30th such Business Day pursuant to Section 4(a)); or
(iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv3) in the case of any Holder Initial Purchaser representing that, on advice of counsel, it holds Registrable Notes that participates are or were ineligible to be exchanged in the Exchange Offer and such Initial Purchaser notifies the Issuers within six months of consummation of the Exchange Offer, then, the Issuers and the Guarantors shall use their commercially reasonable efforts to promptly deliver to the Holders (in the case of clauses (1) and (2) above), the applicable Initial Purchaser (in the case of clause (3) above) and the Trustee notice thereof (the “Shelf Notice”) and shall within 90 days of receipt of a written request from any such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely or Initial Purchaser, use their commercially reasonable efforts to the status of such holder as an affiliate of any Issuer), (v) cause the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely Shelf Registration described in Section 3 to be determined to have, declared effective by the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereofSEC.
Appears in 2 contracts
Sources: Registration Rights Agreement (CyrusOne Inc.), Registration Rights Agreement (Cincinnati Bell Inc)
Exchange Offer. (a) Unless The Co-Issuers and the Exchange Offer would violate applicable law or any applicable interpretation Guarantors shall, for the benefit of the staff of Holders, at the CommissionCo-Issuers’ and the Guarantors’ cost, (A) prepare and file with the Issuers shall (i) file a Registration Statement (SEC no later than 210 days after the “Closing Date, an Exchange Offer Registration Statement”) with the Commission Statement on an appropriate registration form under the 1933 Act with respect to a registered offer (proposed Exchange Offer and the “Exchange Offer”) issuance and delivery to the Holders, in exchange any and all of for the Registrable Notes for Securities (other than Private Exchange Securities), of a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default)Securities, (iiB) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective effective, under the Securities 1933 Act and not later than 330 days after the Closing Date, (iiiC) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after until the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation closing of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely (D) use their commercially reasonable efforts to cause the Exchange Offer to be determined consummated not later than 395 days after the Closing Date, and (E) upon the effectiveness of the Exchange Offer Registration Statement, promptly commence the Exchange Offer, it being the objective of such Exchange Offer to have, the status of an unsold allotment in an initial distribution, or if any enable each Holder eligible and electing to exchange Registrable Securities for Exchange Securities (provided that such Holder (a) is not entitled an affiliate of either Co-Issuer within the meaning of Rule 405 under the 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Co-Issuers for its own account, (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer, Offer for the Company upon the request purpose of any such Holder shall simultaneously with the delivery of distributing the Exchange Notes in Securities) to transfer such Exchange Securities from and after their receipt without any limitations or restrictions under the Exchange Offer, issue 1933 Act and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notesunder state securities or blue sky laws. In connection with the Exchange Offer, the Company Co-Issuers and the Guarantors shall:
(1a) mail or cause to be mailed as promptly as reasonably practicable to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2b) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(c) utilize the services of a depositary the Depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkOffer;
(3d) permit Holders to withdraw tendered Notes Registrable Securities at any time prior to 5:00 p.m., New York p.m. (Eastern time), on the last Business Day on which of the Exchange Offer shall Period, by sending to the institution specified in the notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(e) notify each Holder that any Registrable Security not tendered will remain openoutstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(4f) otherwise comply in all material respects with all applicable laws, rules and regulationslaws relating to the Exchange Offer. As soon as practicable after the close of A Holder that wishes to exchange Registrable Securities in the Exchange Offer and the Private Exchange, if any, the Company shall:
shall be required to (1a) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than represent that (i) it is not an affiliate of either Co-Issuer within the Exchange Offer or Private Exchange, as meaning of Rule 405 under the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission1933 Act, (ii) no action or proceeding all Exchange Securities to be received by it shall have been instituted or threatened be acquired in any court or by any governmental agency which might materially impair the ability ordinary course of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers its business and (iii) all governmental approvals shall have been obtained, which approvals at the Issuers (based upon advice time of counsel) deem necessary for the consummation of the Exchange Offer it shall have no arrangement or understanding with any person to participate in the distribution (within the meaning of the ▇▇▇▇ ▇▇▇) of the Exchange Securities and (b) make such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations. If such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, such broker-dealer will be required to acknowledge that it will deliver a Prospectus in connection with any resale of the Exchange Securities (and the Co-Issuers hereby agree and undertake to provide any such broker-dealer with such number of Prospectuses as such broker-dealer may reasonably request for such purpose). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Securities acquired by them and having the status of an unsold allotment in the initial distribution, the Co-Issuers upon the request of any Initial Purchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Co-Issuers on a senior secured basis, that are identical to the Exchange Securities, except that such securities shall bear appropriate transfer restrictions (the “Private Exchange Securities”). The Exchange Notes Securities and the Private Exchange Notes Securities shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA Trust Indenture Act of 1939, as amended (the “TIA”), or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions or “Additional Interest” provisions set forth in the IndentureIndenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that the Exchange NotesSecurities, the Private Exchange Notes Securities and the Notes Securities shall vote and consent together on all matters as one class and that none of the Exchange NotesSecurities, the Private Exchange Notes Securities or the Notes Securities will have the right to vote or consent as a separate class on any matter.. The Private Exchange Securities shall be of the same series as and the Co-Issuers shall use all commercially reasonable efforts to have the Private Exchange Securities bear the same CUSIP number as the Exchange Securities, if at any time the same is possible. The Co-Issuers shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. As soon as reasonably practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Co-Issuers shall:
(c) In the event that (i) accept for exchange all Registrable Securities duly tendered and not validly withdrawn pursuant to the Exchange Offer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities properly tendered pursuant to the Private Exchange;
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities so accepted for exchange; and
(iv) cause the Trustee promptly to authenticate and deliver Exchange Securities or Private Exchange Securities, as the case may be, to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities of such Holder so accepted for exchange. Interest on each Exchange Security and Private Exchange Security will accrue from the last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of original issuance. The Exchange Offer and the Private Exchange shall not be subject to any changes in conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or the any applicable interpretations interpretation of the staff of the Commission do not permit SEC, (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities exchanged in the Exchange Offer shall have represented that all Exchange Securities to be received by it shall be acquired in the ordinary course of its business and that at the time of the consummation of the Exchange Offer it shall have no arrangement or understanding with any person to participate in the distribution (within the meaning of the ▇▇▇▇ ▇▇▇) of the Exchange Securities and shall have made such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form F-4 or other appropriate form under the 1933 Act available and (iv) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offer or the Private Exchange which, in the Co-Issuers’ judgment, would reasonably be expected to impair the ability of the Co-Issuers to effect proceed with the Exchange Offer or the Private Exchange. If the Co-Issuers determine in their reasonable judgment that any of the foregoing conditions are not satisfied, the Co-Issuers may (a) refuse to accept any Registrable Securities and return all tendered Registrable Securities to the tendering Holders, (b) extend the Exchange Offer and retain all Registrable Securities tendered before the expiration of the Exchange Offer, subject, however, to the rights of holders to withdraw those Registrable Securities, or (iic) for any reason waive the unsatisfied conditions with respect to the Exchange Offer or the Private Exchange and accept all properly tendered Registrable Securities that have not been withdrawn (unless to do so could reasonably be expected to materially and adversely affect one or more tendering Holders in its capacity as such); provided that the foregoing shall not limit the right of Holders to receive, or the obligation of the Co-Issuers to pay, Additional Interest as provided by Section 2.5. The Co-Issuers shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is not consummated within 180 days of the Issue Datemade, (iii) any Holder (other than and the Initial Purchasers) is prohibited by law or Purchasers shall have the applicable interpretations right to contact such Holders and otherwise facilitate the tender of the staff of the Commission or is otherwise ineligible from participating Registrable Securities in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (Navios Maritime Acquisition CORP), Registration Rights Agreement (Navios Maritime Acquisition CORP)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus prospectus-delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers Purchaser acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers Purchaser also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus prospectus-delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain openopen (or such later time as may be required by law); and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the IndentureIndenture (except as required by law). The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial PurchasersPurchaser) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers Purchaser so request requests with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (Beazer Homes Usa Inc), Registration Rights Agreement (Beazer Homes Usa Inc)
Exchange Offer. (aExcept as set forth in Section 2(b) Unless below, the Exchange Offer would violate applicable law or any applicable interpretation Company shall, for the benefit of the staff of Holders, at the CommissionCompany's cost, the Issuers shall use its reasonable best efforts to (i) file a Registration Statement (cause to be filed with the “SEC within 60 calendar days after the Issue Date an Exchange Offer Registration Statement”) with the Commission Statement on an appropriate registration form with respect under the Securities Act relating to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the such Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate by the Exchange Offer within 180 SEC not later than the date which is 135 calendar days after the Issue Date. Upon the , (iii) keep such Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days 30 calendar days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Holders and (iv) cause the Exchange Offer will to be required to represent to consummated within 180 calendar days after the Issue Date. Promptly after the effectiveness of the Exchange Offer Registration Statement, the Company in writing shall commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Notes for a like principal amount of Exchange Notes of the same series (provided that such Holder (i) any is not an Affiliate of the Company, (ii) is not a broker-dealer tendering Registrable Notes acquired directly from the Company, (iii) acquires the Exchange Notes to be received by it will be acquired in the ordinary course of its business, such Holder's business and (iiiv) it has no arrangement arrangements or understanding understandings with any Person to participate in the distribution (within Exchange Offer for the meaning purpose of the Securities Act) of distributing the Exchange Notes in violation of the provisions of the Securities Act, (iiiNotes) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if transfer such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes from and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making after their receipt without any limitations or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of restrictions under the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes under state securities or blue sky laws (other than a resale of requiring minimum transfers in blocks having an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notesaggregate principal amount, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements case may be, of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”$100,000), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) i. mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for ii. keep the Exchange Offer with an address in the Borough open for acceptance for a period of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable not less than 30 days after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant date notice thereof is mailed to the Exchange Offer and the Private Exchange;
Holders (2or longer if required by applicable law) deliver or cause (such period referred to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, herein as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer"EXCHANGE PERIOD"), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.;
Appears in 2 contracts
Sources: Registration Rights Agreement (Equity Office Properties Trust), Registration Rights Agreement (Equity Office Properties Trust)
Exchange Offer. (a) Unless The Issuer shall (A) prepare and, on or prior to 60 days after the Issue Date (the "Exchange Filing Date"), file with the SEC a Registration Statement under the Securities Act with respect to an offer by the Company to the holders of the Notes to issue and deliver to such holders, in exchange for Notes, a like principal amount of Exchange Notes (the "Exchange Offer"), (B) use its best efforts to cause the Registration Statement relating to the Exchange Offer would to be declared effective by the SEC under the Securities Act on or prior to 150 days after the Issue Date (the "Exchange Effectiveness Date") and (C) commence the Exchange Offer and use its best efforts to issue, on or prior to 180 days after the Issue Date, the Exchange Notes. The offer and sale of the Exchange Notes pursuant to the Exchange Offer shall be registered pursuant to the Securities Act on the appropriate form (the "Exchange Registration Statement") and duly registered or qualified under all applicable state securities or Blue Sky laws and will comply with all applicable tender offer rules and regulations under the Exchange Act and state securities or Blue Sky laws. The Exchange Offer shall not be subject to any condition, other than that the Exchange Offer does not violate any applicable law or any applicable interpretation of the staff of the CommissionSEC. Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuers Issuer shall have no further registration obligations other than with respect to (i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Private Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act Notes held by Participating Broker-Dealers and (iii) use their commercially reasonable efforts Notes or Exchange Notes as to consummate which Section 3 hereof applies. No securities shall be included in the Exchange Registration Statement other than the Exchange Notes.
(b) The Issuer may require each holder of Notes as a condition to its participation in the Exchange Offer within 180 days after to represent to the Issue Date. Upon Issuer and its counsel in writing (which may be contained in the Exchange Offer Registration Statement being declared effective by applicable letter of transmittal) that at the Commission, the Company will offer the Exchange Notes in exchange for surrender time of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice consummation of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it such holder will be acquired in the ordinary course of its business, (ii) it has such holder will have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, and (iii) it such holder is not an affiliate (as defined in Rule 405 under Affiliate of the Securities Act) of any Issuer orIssuer, or if it is an affiliateAffiliate of the Issuer, it will comply with the registration and prospectus delivery requirements of the Securities Act Act, to the extent applicable. If, (iv) if such Holder prior to consummation of the Exchange Offer, an Initial Purchaser holds any Notes acquired by it and having, or that are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, or any other holder of Notes is not a broker-dealerentitled to participate in the Exchange Offer, it is not engaged inthe Company upon the request of such Initial Purchaser or any such holder shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and does not intend deliver to engage insuch Initial Purchaser and any such holder, in exchange (the "Private Exchange") for such Notes held by such Initial Purchaser and any such holder, a distribution like principal amount of debt securities of the Company, that are identical in all material respects to the Exchange Notes (the "Private Exchange Notes") (and (v) if such Holder is a broker-dealer that will receive are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes for its own account in exchange for Notes that were acquired shall bear the same CUSIP number as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such the Exchange Notes.
(b) . The Company Issuer and the Initial Purchasers acknowledge that the staff of the Commission SEC has taken the position that any broker-dealer that elects to exchange owns Exchange Notes that were acquired received by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “"Participating Broker-Dealer”") may be deemed to be an “"underwriter” " within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuer and the Initial Purchasers also acknowledge that it is the staff of the Commission has taken the SEC staff's position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree Issuer agrees (x) to use their reasonable its best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), six months or such earlier date as all Requesting each Participating Broker-Dealers Dealer shall have notified the Company in writing that such Requesting Participating Broker-Dealers have Dealer has resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan , (y) to comply with the provisions of distribution in such Section 5 of this Agreement, as they relate to the Exchange Offer and the Exchange Registration Statement, and (z) to deliver to such Participating Broker-Dealer a "cold comfort" letter of the independent public accountants of the Issuer and a legal opinion as to matters reasonably requested by such Participating Broker-Dealer relating to the Exchange Registration Statement that meets and the requirements set forth related Prospectus and any amendments or supplements thereto. Interest on the Exchange Notes and the Private Exchange Notes will accrue from (A) the later of (i) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor and (ii) if the preceding paragraphNotes are surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B), if no interest has been paid on the Notes, from the Issue Date. If, prior to consummation of the In connection with each Exchange Offer, any Holder holds any Notes acquired by it that havethe Issuer shall:
(1) mail, or that are reasonably likely cause to be determined mailed, to have, the status each Holder of an unsold allotment in an initial distribution, or if any Holder is not record entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use their best efforts to keep the Exchange Offer open for not less than 20 business days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(34) permit Holders to withdraw validly tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day business day on which the Exchange Offer shall remain open; and
(45) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the applicable Exchange Offer and the applicable Private Exchange, if any, the Company Issuer shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the applicable Exchange Offer and the applicable Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Registrable Notes so accepted for exchange; and
(3) exchange and cause the Trustee to authenticate and deliver promptly to each Holder of Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes securities of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and whichthat, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the IndentureIndenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in such indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that If, (i) because of any changes change in law or the applicable in currently prevailing interpretations of the staff of the Commission do SEC, the Issuer is not permit the Issuers permitted to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than holder of any Private Exchange Notes so requests in writing to the Initial Purchasers) is prohibited by law or Issuer within 45 days after the applicable interpretations consummation of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder Holder as an affiliate of any Issuerthe Issuer within the meaning of the Securities Act), (v) then in the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status case of unsold allotments in an initial distribution or (vi) any Holder each of Private Exchange Notes so requests (each such event referred to in clauses (i) through to and including (viiv) of this sentence, a “the Issuer shall promptly deliver to the Holders and the Trustee written notice thereof (the "Shelf Filing Event”), then the Issuers Notice") and shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 2 contracts
Sources: Registration Agreement (Flag Telecom Holdings LTD), Registration Agreement (Flag Telecom Holdings LTD)
Exchange Offer. (a) Unless The Issuers and the Guarantors shall:
(i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the "Exchange Offer Registration Statement") on an appropriate form under the Securities Act with respect to a proposed offer (the "Exchange Offer") to the Holders to issue and deliver to such Holders, in exchange for the Notes, a like aggregate principal amount of Exchange Securities;
(ii) use their respective reasonable best efforts to cause the Exchange Offer Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date;
(iii) use their respective reasonable best efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer pursuant to its terms; and
(iv) unless the Exchange Offer would not be permitted by a policy of the SEC, commence the Exchange Offer and use their respective reasonable best efforts to, on the earliest practicable date after the Exchange Offer Registration Statement is declared effective, but in no event later than 30 Business Days thereafter, consummate the Exchange Offer and issue Exchange Securities in exchange for all Notes properly tendered and not withdrawn on or prior to the expiration of 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 Commission, the Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange NotesSEC.
(b) The Company Exchange Securities shall be issued under, and entitled to the Initial Purchasers acknowledge benefits of, the Indenture or a trust indenture that is identical to the staff of the Commission has taken the position that Indenture (other than such changes as are necessary to comply with any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from SEC to effect or maintain the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations qualification thereof under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer TIA).
(a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”c) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company Issuers and the Guarantors shall:
(1i) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal that is an exhibit to the Exchange Offer Registration Statement, and any related documents;
(2ii) keep the Exchange Offer open for not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law);
(iii) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3iv) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4v) otherwise comply in all material respects with all laws applicable laws, rules and regulations. to the Exchange Offer.
(d) As soon as practicable after the close of the Exchange Offer Offer, the Issuers and the Private Exchange, if any, the Company Guarantors shall:
(1i) accept for exchange all Notes validly properly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private ExchangeOffer;
(2ii) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3iii) cause the Trustee promptly to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, Securities equal in aggregate principal amount to the Notes of such Holder so accepted for exchange.
(e) Interest on each Exchange Security and each Private Exchange Security will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes, or as otherwise described in the Indenture. Each Exchange Security and each Private Exchange Security shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes surrendered in exchange therefor from time to time during such period.
(f) The Exchange Offer Issuers and the Private Exchange Guarantors shall not be subject to any conditions, other than that (i) include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled "Plan of Distribution," containing a summary statement of the positions taken or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of policies made by the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding SEC with respect to the Issuers and potential "underwriter" status of any broker-dealer that is the beneficial owner (iiias defined in Rule 13d-3 under the Exchange Act) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of Exchange Securities received by such broker-dealer in the Exchange Offer or Private Exchange(a "Participating Broker-Dealer"). Such "Plan of Distribution" section shall also allow the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including (without limitation) all Participating Brokers-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Securities. The Exchange Notes Issuers and the Private Guarantors shall use their respective reasonable best efforts to keep the Exchange Notes shall Offer Registration Statement continuously effective and to amend and supplement the Prospectus to be issued under lawfully delivered by all Persons subject to the prospectus delivery requirement of the Securities Act for the shorter of : (i) such period of time as such Persons must comply with such requirements in order to resell the Indenture or Exchange Securities and (ii) an indenture identical in the period ending when all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason Registrable Securities covered by the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement have been sold pursuant to Section 3 hereofthereto (the "Applicable Period").
Appears in 2 contracts
Sources: Registration Rights Agreement (Majestic Star Casino LLC), Registration Rights Agreement (Majestic Star Casino LLC)
Exchange Offer. (aExcept as set forth in Section 2(b) Unless below, the Exchange Offer would violate applicable law or any applicable interpretation Company shall, for the benefit of the staff of Holders, at the CommissionCompany's cost, the Issuers shall use its reasonable best efforts to (i) file a Registration Statement (with the “SEC within 150 calendar days after the Issue Date an Exchange Offer Registration Statement”) with the Commission Statement on an appropriate registration form with respect under the Securities Act relating to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the such Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate by the Exchange Offer within SEC not later than the date which is 180 calendar days after the Issue Date. Upon the , (iii) keep such Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days 30 calendar days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Holders and (iv) cause the Exchange Offer will to be required to represent to consummated within 225 calendar days after the Issue Date. Promptly after the effectiveness of the Exchange Offer Registration Statement, the Company in writing shall commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities for a like principal amount of Exchange Securities (provided that such Holder (i) any is not an Affiliate of the Company, (ii) is not a broker-dealer tendering Registrable Securities acquired directly from the Company, (iii) acquires the Exchange Notes to be received by it will be acquired Securities in the ordinary course of its business, such Holder's business and (iiiv) it has no arrangement arrangements or understanding understandings with any Person to participate in the distribution (within Exchange Offer for the meaning purpose of the Securities Act) of distributing the Exchange Notes in violation of the provisions of the Securities Act, (iiiSecurities) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of transfer such Exchange Notes.
(b) The Company Securities from and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that after their receipt without any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making limitations or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of restrictions under the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers under state securities or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notesblue sky laws. In connection with the Exchange Offer, the Company shall:
(1i) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2ii) keep the Exchange Offer open for acceptance for a period of not less than 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the "EXCHANGE PERIOD");
(iii) utilize the services of a depositary the Depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New Yorkrespect to Securities represented by a global certificate;
(3iv) permit Holders to withdraw tendered Notes Registrable Securities at any time prior to 5:00 p.m.the close of business, New York City time, on the last Business Day on which of the Exchange Period, by sending to the institution specified in the notice to Holders, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange, and a statement that such Holder is withdrawing his election to have such Registrable Securities exchanged;
(v) notify each Holder that any Registrable Security not tendered by such Holder in the Exchange Offer shall will remain openoutstanding and continue to accrue interest but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(4vi) otherwise comply in all material respects with all applicable laws, rules and regulationslaws relating to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if anyOffer, the Company shall:
(1i) accept for exchange all Notes validly Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange Offer in accordance with the terms of the Exchange Offer Registration Statement and the Private Exchangeletter of transmittal which is an exhibit thereto;
(2ii) deliver deliver, or cause to be delivered delivered, to the Trustee for cancellation in accordance with Section 5(t) all Notes Registrable Securities or portions thereof so accepted for exchangeexchange by the Company; and
(3iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver promptly to each Holder of NotesHolder, Exchange Notes or Private Exchange Notes, as the case may be, Securities equal in principal amount to the Notes principal amount of the Securities as are surrendered by such Holder so accepted for exchangeHolder. The Interest on each Exchange Offer and the Private Exchange shall not be subject Security issued pursuant to any conditions, other than that (i) the Exchange Offer will accrue from the last date on which interest was paid or Private Exchangeduly provided for on the Security surrendered in exchange therefor or, as if no interest has been paid on such Security, from the case may be, does Issue Date. To the extent not violate applicable prohibited by any law or any applicable interpretation of the staff of the CommissionSEC, the Company shall use reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions other than the conditions referred to in Section 2(b)(i) and (ii) below and those conditions that are customary in similar exchange offers. Each Holder of Registrable Securities who wishes to exchange such Registrable Securities for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including, in the case of any Holder, representations that (i) it is not an Affiliate of the Company, (ii) no action or proceeding shall have been instituted or threatened it is not a broker-dealer tendering Registrable Securities acquired directly from the Company, (iii) the Exchange Securities to be received by it are being acquired in any court or by any governmental agency which might materially impair the ability ordinary course of its business and (iv) at the time of the Issuers Exchange Offer, it has no arrangements or understandings with any Person to proceed participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Company shall inform the Initial Purchasers, after consultation with the Trustee, of the names and addresses of the Holders to whom the Exchange Offer or the Private Exchangeis made, and no material adverse development the Initial Purchasers shall have occurred the right to contact such Holders in any existing action or proceeding with respect order to facilitate the Issuers and (iii) all governmental approvals shall have been obtained, which approvals tender of Registrable Securities in the Issuers (based upon advice of counsel) deem necessary for the Exchange Offer. Upon consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, accordance with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notesthis Section 2(a), the Private Exchange Notes and the Notes provisions of this Agreement shall vote and consent together on all matters as one class and that none of the Exchange Notescontinue to apply, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange OfferMUTATIS MUTANDIS, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that haveExchange Securities held by Participating Broker-Dealers, or that are reasonably likely and the Company shall have no further obligation to be determined to have, register the status of unsold allotments in an initial distribution or (vi) Registrable Securities held by any Holder of Private Exchange Notes so requests (each such event referred pursuant to in clauses (i) through (viSection 2(b) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereofAgreement.
Appears in 2 contracts
Sources: Registration Rights Agreement (U S West Communications Inc), Registration Rights Agreement (U S West Communications Inc)
Exchange Offer. (a) Unless The Co-Issuers and the Exchange Offer would violate applicable law or any applicable interpretation Guarantors shall, for the benefit of the staff of Holders, at the CommissionCo-Issuers’ and the Guarantors’ cost, (A) prepare and file with the Issuers shall (i) file a Registration Statement (SEC no later than 270 days after the “Closing Date, an Exchange Offer Registration Statement”) with the Commission Statement on an appropriate registration form under the 1933 Act with respect to a registered offer (proposed Exchange Offer and the “Exchange Offer”) issuance and delivery to the Holders, in exchange any and all of for the Registrable Notes for Securities (other than Private Exchange Securities), of a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default)Securities, (iiB) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective effective, under the Securities 1933 Act and not later than 365 days after the Closing Date, (iiiC) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after until the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation closing of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely (D) use their commercially reasonable efforts to cause the Exchange Offer to be determined consummated not later than 400 days after the Closing Date, and (E) upon the effectiveness of the Exchange Offer Registration Statement, promptly commence the Exchange Offer, it being the objective of such Exchange Offer to have, the status of an unsold allotment in an initial distribution, or if any enable each Holder eligible and electing to exchange Registrable Securities for Exchange Securities (provided that such Holder (a) is not entitled an affiliate of either Co-Issuer within the meaning of Rule 405 under the 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Co-Issuers for its own account, (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer, Offer for the Company upon the request purpose of any such Holder shall simultaneously with the delivery of distributing the Exchange Notes in Securities) to transfer such Exchange Securities from and after their receipt without any limitations or restrictions under the Exchange Offer, issue 1933 Act and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notesunder state securities or blue sky laws. In connection with the Exchange Offer, the Company Co-Issuers and the Guarantors shall:
(1a) mail or cause to be mailed as promptly as reasonably practicable to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2b) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(c) utilize the services of a depositary the Depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkOffer;
(3d) permit Holders to withdraw tendered Notes Registrable Securities at any time prior to 5:00 p.m., New York p.m. (Eastern time), on the last Business Day on which of the Exchange Offer shall Period, by sending to the institution specified in the notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(e) notify each Holder that any Registrable Security not tendered will remain openoutstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(4f) otherwise comply in all material respects with all applicable laws, rules and regulationslaws relating to the Exchange Offer. As soon as practicable after the close of A Holder that wishes to exchange Registrable Securities in the Exchange Offer and the Private Exchange, if any, the Company shall:
shall be required to (1a) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than represent that (i) it is not an affiliate of either Co-Issuer within the Exchange Offer or Private Exchange, as meaning of Rule 405 under the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission1933 Act, (ii) no action or proceeding all Exchange Securities to be received by it shall have been instituted or threatened be acquired in any court or by any governmental agency which might materially impair the ability ordinary course of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers its business and (iii) all governmental approvals shall have been obtained, which approvals at the Issuers (based upon advice time of counsel) deem necessary for the consummation of the Exchange Offer it shall have no arrangement or understanding with any person to participate in the distribution (within the meaning of the ▇▇▇▇ ▇▇▇) of the Exchange Securities and (b) make such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations. If such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, such broker-dealer will be required to acknowledge that it will deliver a Prospectus in connection with any resale of the Exchange Securities (and the Co-Issuers hereby agree and undertake to provide any such broker-dealer with such number of Prospectuses as such broker-dealer may reasonably request for such purpose). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Securities acquired by them and having the status of an unsold allotment in the initial distribution, the Co-Issuers upon the request of any Initial Purchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Co-Issuers on a senior secured basis, that are identical to the Exchange Securities, except that such securities shall bear appropriate transfer restrictions (the “Private Exchange Securities”). The Exchange Notes Securities and the Private Exchange Notes Securities shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA Trust Indenture Act of 1939, as amended (the “TIA”), or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions or “Additional Interest” provisions set forth in the IndentureIndenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that the Exchange NotesSecurities, the Private Exchange Notes Securities and the Notes Securities shall vote and consent together on all matters as one class and that none of the Exchange NotesSecurities, the Private Exchange Notes Securities or the Notes Securities will have the right to vote or consent as a separate class on any matter.. The Private Exchange Securities shall be of the same series as and the Co-Issuers shall use all commercially reasonable efforts to have the Private Exchange Securities bear the same CUSIP number as the Exchange Securities, if at any time the same is possible. The Co-Issuers shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. As soon as reasonably practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Co-Issuers shall:
(c) In the event that (i) accept for exchange all Registrable Securities duly tendered and not validly withdrawn pursuant to the Exchange Offer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities properly tendered pursuant to the Private Exchange;
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities so accepted for exchange; and
(iv) cause the Trustee promptly to authenticate and deliver Exchange Securities or Private Exchange Securities, as the case may be, to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities of such Holder so accepted for exchange. Interest on each Exchange Security and Private Exchange Security will accrue from the last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of original issuance. The Exchange Offer and the Private Exchange shall not be subject to any changes in conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or the any applicable interpretations interpretation of the staff of the Commission do not permit SEC, (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities exchanged in the Exchange Offer shall have represented that all Exchange Securities to be received by it shall be acquired in the ordinary course of its business and that at the time of the consummation of the Exchange Offer it shall have no arrangement or understanding with any person to participate in the distribution (within the meaning of the ▇▇▇▇ ▇▇▇) of the Exchange Securities and shall have made such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form F-4 or other appropriate form under the 1933 Act available and (iv) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offer or the Private Exchange which, in the Co-Issuers’ judgment, would reasonably be expected to impair the ability of the Co-Issuers to effect proceed with the Exchange Offer or the Private Exchange. If the Co-Issuers determine in their reasonable judgment that any of the foregoing conditions are not satisfied, the Co-Issuers may (a) refuse to accept any Registrable Securities and return all tendered Registrable Securities to the tendering Holders, (b) extend the Exchange Offer and retain all Registrable Securities tendered before the expiration of the Exchange Offer, subject, however, to the rights of holders to withdraw those Registrable Securities, or (iic) for any reason waive the unsatisfied conditions with respect to the Exchange Offer or the Private Exchange and accept all properly tendered Registrable Securities that have not been withdrawn (unless to do so could reasonably be expected to materially and adversely affect one or more tendering Holders in its capacity as such); provided that the foregoing shall not limit the right of Holders to receive, or the obligation of the Co-Issuers to pay, Additional Interest as provided by Section 2.5. The Co-Issuers shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is not consummated within 180 days of the Issue Datemade, (iii) any Holder (other than and the Initial Purchasers) is prohibited by law or Purchasers shall have the applicable interpretations right to contact such Holders and otherwise facilitate the tender of the staff of the Commission or is otherwise ineligible from participating Registrable Securities in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (Petrolera San Antonio S.A.), Registration Rights Agreement (Navios Maritime Holdings Inc.)
Exchange Offer. (a) Unless If the Exchange Offer would violate applicable law or any applicable interpretation Board of Directors of NHP has not approved the Merger Proposal prior to the first anniversary of the staff date of this Agreement (such first anniversary being the Commission"COMMENCEMENT DATE"), then AIMCO shall commence, not later than the Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on Commencement Date, an appropriate registration form with respect to a registered offer (the “Exchange Offer”"EXCHANGE OFFER") to exchange shares of AIMCO Stock for any and all of the Registrable Notes then outstanding shares of NHP Stock, with the number of shares of AIMCO Stock offered in exchange for a like aggregate principal amount each share of notes (including the guarantees with respect theretoNHP Stock equal to $20 divided by $26.75; provided, the “Exchange Notes”) however, that are identical in all material respects to the Notes (except that the Exchange Notes AIMCO shall not contain terms with respect be obligated to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts issue any fractional shares of AIMCO Stock pursuant to cause the Exchange Offer Registration Statement and, in lieu thereof, may make cash payments; provided, further, that AIMCO shall not be obligated to commence the Exchange Offer if any event or circumstance shall have occurred or arisen and be declared effective continuing that would result in the failure to satisfy any of the conditions set forth in SECTION 5.11(c). AIMCO's obligation under this SECTION 5.11(a) shall include preparing and filing with the SEC a registration statement for the purpose of registering under the Securities Act and (iii) use their commercially reasonable efforts the shares of AIMCO Stock to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates be issued in the Exchange Offer will be required and using its best efforts to represent to seek the Company in writing that (i) any Exchange Notes to be received by it will be acquired in effectiveness of such registration statement and maintain the ordinary course effectiveness of its business, (ii) it has no arrangement or understanding with any Person to participate in such registration statement until the distribution (within the meaning of the Securities Act) consummation of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange NotesOffer.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in AIMCO shall conduct the Exchange Offer in accordance with all applicable laws, including without limitation, Section 14 under the Exchange Act, and the rules and regulations thereunder. AIMCO shall cause the information included, or incorporated by reference, in the documents (a “Participating Broker-Dealer”the "OFFER DOCUMENTS") may be deemed pursuant to be an “underwriter” within which the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes Offer is made (other than information with respect to NHP) not to contain any untrue statement of a resale material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading at the time the Offer Documents (or any amendment or supplement thereto) are first mailed to the stockholders of an unsold allotment resulting from the original offering NHP.
(c) Notwithstanding any other provisions of the Notes). The Company Exchange Offer, AIMCO shall not be required to accept for exchange any shares of NHP Stock tendered pursuant to the Exchange Offer, may postpone the exchange of shares tendered, and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in may terminate or amend the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers if at any time on or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which hereof and at or before the Exchange Registration Statement is declared effective, time of acceptance for exchange of any such shares (whether or such longer period if extended not any shares have theretofore been accepted for exchange) pursuant to the penultimate paragraph Exchange Offer, any of the following shall occur:
(i) any change, event, occurrence or circumstance shall have occurred, arisen or been threatened in the business, properties, assets, liabilities, capitalization, financial condition, operations, licenses or franchises, or results of operations of NHP, which change is or is reasonably likely to have a Material Adverse Effect on NHP, or a material change shall have occurred in the equity capitalization of NHP that would be adverse to AIMCO, or AIMCO shall have become aware of any facts relating to NHP or its operations which has or may have material significance with respect to the value of NHP;
(ii) there shall be instituted or pending any action, proceeding, application or counterclaim by any Governmental Authority, or by any Person before any Governmental Authority (other than pursuant to Section 5 hereof (such period, 203 of the “Applicable Period”DGCL), which (A) restrains, prohibits, materially delays or such earlier date as all Requesting Participating Broker-Dealers shall have notified makes illegal the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to making or consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have(B) seeks to restrain, prohibit, materially delay or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in make illegal the Exchange Offer, (C) imposes or seeks to impose any material limitation on the Company upon ability of AIMCO or any Affiliate of AIMCO to conduct NHP's business or own any assets of NHP, (D) imposes or seeks to impose material limitations on the request ability of AIMCO to acquire or hold or to exercise full rights of ownership of the shares of NHP Stock including, but not limited to, the right to vote the shares of NHP Stock purchased by it on all matters properly presented to the stockholders of NHP, or (E) might result in a limitation of the benefits expected to be derived by AIMCO as a result of the transactions contemplated by the Exchange Offer or the value of the shares of NHP Stock to AIMCO; provided, however, that AIMCO shall use its best efforts to contest any such Holder action, proceeding, application or counterclaim, or to seek to have any such action, proceeding, application or counterclaim vacated or lifted;
(iii) there shall simultaneously with the delivery of the Exchange Notes in be any action taken, or any Law or Order shall be sought, proposed, enacted, promulgated, entered, enforced or deemed applicable to the Exchange Offer, issue and deliver to AIMCO or any such HolderAffiliate of AIMCO, in exchange (the “Private Exchange”) for such Notes held or any other action shall have been taken, proposed or threatened, by any such HolderGovernmental Authority that might reasonably be expected to, a like principal amount directly or indirectly, result in any of notes the consequences referred to in clauses (the “Private Exchange Notes”A) through (E) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued paragraph (ii) above (other than pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy Section 203 of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documentsDGCL);
(2iv) utilize a registration statement relating to the services shares of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn AIMCO Stock issuable pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to effective under the Securities Act or there shall be pending or threatened a proceeding for the issuance of an order suspending the effectiveness of any conditions, other than that such registration statement; or
(iv) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions conditions set forth in the Indenture. The Indenture or such indenture SECTION 6.1 shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will not have the right to vote or consent as a separate class on any matterbeen satisfied.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Apartment Investment & Management Co), Stock Purchase Agreement (Apartment Investment & Management Co)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice occurrence of the Exchange Offer is mailed to Holders. Each Holder that participates in accordance with the Exchange Offer will be required to represent to Registration Rights Agreement, the Company shall issue and, upon receipt of an Authentication Order in writing that accordance with Section 2.2 and an Opinion of Counsel for the Company as to certain matters discussed in this Section 2.6(f), the Trustee shall authenticate (i) any Exchange one or more Unrestricted Global Notes in an aggregate principal amount equal to be received by it will be acquired the sum of (A) the principal amount of the beneficial interests in the ordinary course Restricted Global Notes tendered for acceptance by Persons that certify in the applicable Letters of its businessTransmittal that (x) they are not Broker-Dealers, (iiy) it has no arrangement or understanding with any Person to participate they are not participating in the a distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, and (iiiz) it is they are not an affiliate affiliates (as defined in Rule 405 under the Securities Act144) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged inCompany, and does not intend to engage in, a distribution of accepted for exchange in the Exchange Notes Offer and (vB) if such Holder is a broker-dealer that will receive Exchange the principal amount of Restricted Definitive Notes exchanged or transferred for its own account beneficial interests in exchange for Unrestricted Global Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such the Exchange Notes.
Offer pursuant to Section 2.6(d)(2) and (bii) The Company and Definitive Notes in an aggregate principal amount equal to the Initial Purchasers acknowledge that the staff principal amount of the Commission has taken the position that any broker-dealer that elects to Restricted Definitive Notes accepted for exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”other than Definitive Notes described in clause (i)(B) may be deemed immediately above). Concurrently with the issuance of such Notes, the Trustee shall cause the aggregate principal amount of the applicable Restricted Global Notes to be reduced accordingly, and the Company shall execute and, upon receipt of an “underwriter” within Authentication Order pursuant to Section 2.2, the meaning Trustee shall authenticate and deliver to the Persons designated by the Holders of Definitive Notes so accepted Definitive Notes in the appropriate principal amount. The Opinion of Counsel for the Company referenced above shall state that:
(A) the issuance and sale of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company have been duly authorized and, when executed and authenticated in writing that such Requesting Participating Broker-Dealers have resold all Exchange accordance with the provisions of this Indenture and delivered in exchange for Series A Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of accordance with this Indenture and the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to will be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate the benefits of this Indenture and will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms except as the enforceability thereof may be limited by (x) bankruptcy, fraudulent transfer, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and (y) equitable principles of general applicability (regardless of whether enforceability is considered at equity or in law); and
(B) when the Exchange Notes are executed and authenticated in accordance with the provisions of this Indenture and delivered in exchange for Series A Notes in accordance with this Indenture and the Exchange Offer, the Company upon Guarantees by the request Guarantors endorsed thereon will be entitled to the benefits of any such Holder shall simultaneously with the delivery this Indenture and will be valid and binding obligations of the Exchange Notes in Guarantors, enforceable against the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation Guarantors in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, their terms except as the case enforceability thereof may bebe limited by (x) bankruptcy, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditionsfraudulent transfer, other than that (i) the Exchange Offer insolvency, reorganization, moratorium or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers similar laws affecting creditors' rights generally and (iiiy) all governmental approvals shall have been obtained, which approvals the Issuers equitable principles of general applicability (based upon advice regardless of counsel) deem necessary for the consummation of the Exchange Offer whether enforceability is considered at equity or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matterlaw).
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 2 contracts
Sources: Indenture (Penton Media Inc), Indenture (Penton Media Inc)
Exchange Offer. (a) Unless To the Exchange Offer would violate extent not prohibited by any applicable law or any applicable interpretation interpretations of the staff of the CommissionSEC, the Issuers and the Guarantors shall use their reasonable best efforts to (iX) file a Registration Statement (the “an Exchange Offer Registration Statement”) with Statement covering an offer to the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) Holders to exchange any and all the Transfer Restricted Notes for Exchange Notes within 420 days after the issue date of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Initial Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (iiY) use their commercially reasonable efforts to cause the such Exchange Offer Registration Statement to be declared effective under by the Securities Act SEC within 480 days after the issue date of the Initial Notes and (iiiZ) use their commercially reasonable efforts to consummate the Exchange Offer within have such Registration Statement remain effective until 180 days after the Issue Datelast Exchange Date for use by one or more Participating Broker-Dealers if one or more broker-dealers notify the Issuers in writing that they anticipate that they will be Participating Broker-Dealers. Upon The Issuers and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement being is declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep SEC and use their reasonable best efforts to complete the Exchange Offer open not later than 60 days after such effective date.
(b) The Issuers and the Guarantors shall, for not less than 20 Business Days (or longer the benefit of the Holders, at the Issuers’ and Guarantors’ cost, commence the Exchange Offer, if any, by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) after the date notice of that the Exchange Offer is mailed being made pursuant to Holders. Each this Agreement and that all Transfer Restricted Notes validly tendered and not properly withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 Business Days from the date such notice is mailed) (the “Exchange Dates”);
(iii) that any Transfer Restricted Notes not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder that participates in electing to have a Transfer Restricted Note exchanged pursuant to the Exchange Offer will be required to represent (A) surrender such Transfer Restricted Note, together with the appropriate letters of transmittal, to the Company institution and at the address (located in writing the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the Depositary, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Transfer Restricted Notes delivered for exchange and a statement that such Holder is withdrawing its election to have such Transfer Restricted Notes exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the Depositary.
(c) Upon the effectiveness of the Exchange Offer Registration Statement, the Issuers and the Guarantors shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Transfer Restricted Notes for Exchange Notes (assuming that such Holder makes representations and warranties to the Issuers that (ia) it is not an affiliate of the Issuers within the meaning of Rule 405 under the 1933 Act, (b) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (ivc) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, a the distribution of the Exchange Notes and Notes, (vd) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Transfer Restricted Notes that were acquired as a result of market-making or other trading activities, it then such broker-dealer will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(bor, to the extent permitted by law, make available a Prospectus) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers and (e) it has no arrangements or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection understandings with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled Person to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery distribution of the Exchange Transfer Restricted Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to or the Exchange Notes. The Private ) to transfer such Exchange Notes shall be issued pursuant to from and after their receipt without any limitations or restrictions under the same indenture as the Exchange Notes 1933 Act and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:under state securities or blue sky laws.
(1d) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA Trust Indenture Act of 1939, as amended (the “TIA”), or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Initial Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Initial Notes will have the right to vote or consent as a separate class on any matter.
(ce) In As soon as practicable after the event that last Exchange Date, the Issuers and the Guarantors shall:
(i) accept for exchange all Transfer Restricted Notes duly tendered and not validly withdrawn pursuant to the Exchange Offer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) deliver to the Trustee for cancellation all Transfer Restricted Notes so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver Exchange Notes to each Holder of Transfer Restricted Notes so accepted for exchange in a principal amount equal to the principal amount of the Transfer Restricted Notes of such Holder so accepted for exchange.
(f) Interest on each Exchange Note will accrue (a) from the later of (i) the last date on which interest was paid on the Transfer Restricted Notes surrendered in exchange therefor or (ii) if the Transfer Restricted Notes are surrendered for exchange on a date that is after the record date with respect to an interest payment date that will occur on or after the settlement of such exchange, the date of such interest payment date or (b) if no interest has been paid on the Transfer Restricted Notes, from the date of issuance. Upon request, the Issuers 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, but not the obligation, to contact such Holders and otherwise facilitate the tender of Transfer Restricted Notes in the Exchange Offer.
(g) The Issuers and the Guarantors shall use their 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 Offer shall not be subject to any changes in conditions, other than (1) the Exchange Offer does not violate any applicable law or the applicable interpretations of the staff of the Commission do not permit SEC, (2) 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 (3) all governmental approvals shall have been obtained that the Issuers to effect deem necessary for the consummation of the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (CityCenter Holdings, LLC), Registration Rights Agreement (CityCenter Holdings, LLC)
Exchange Offer. (a) Unless The Issuer shall, at the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the CommissionIssuer's cost (as set forth in Section 6 hereof), the Issuers shall (i) file (or confidentially submit) a Registration Statement (the “"Exchange Offer Registration Statement”") within 60 days after the Issue Date with the Commission on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “"Exchange Notes”") that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages Additional Interest upon a Registration Default), ) and (ii) use their commercially its reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or prior to 120 days after the Issue Date and (iii) use their commercially its reasonable best efforts to consummate the Exchange Offer within 180 on or prior to 150 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company Issuer will offer the Exchange Notes in exchange for surrender of the Notes. The Company Issuer shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company Issuer in writing that (i) such Holder is not an affiliate of the Issuer within the meaning of the Securities Act, (ii) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (iiiii) it has 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 as such term is used in the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus Prospectus in connection with any re-sale resale of such Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers (as defined), and the Issuer shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and other than in respect of any Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement.
(b) The Company Issuer and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “"Participating Broker-Dealer”") may be deemed to be an “"underwriter” " within the meaning of the Securities Act and must deliver a prospectus Prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuer and the Initial Purchasers also acknowledge that it is the staff of the Commission has taken the Commission's position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (Healthsouth Corp), Registration Rights Agreement (Healthsouth Corp)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain restrictive legends, terms with respect to transfer restrictions or Liquidated Damages Additional Interest upon a Registration Default), (ii) use their commercially reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable best efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company Issuers will offer the Exchange Notes in exchange for surrender of the Notes. The Company Issuers shall keep the Exchange Offer open for not less than 20 Business Days 30 days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company Issuers in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (of the Company or any Guarantor as defined in by Rule 405 under of the Securities Act) of any Issuer or, or if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange Notes.
(b) The Company Issuers and the Initial Purchasers Purchaser acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuers and the Initial Purchasers Purchaser also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up necessary to 210 comply with applicable law in connection with such resales but in no event more than 180 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to any Delay Period in accordance with the penultimate last paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all each Requesting Participating Broker-Dealers Dealer shall have notified the Company in writing that such Requesting Participating Broker-Dealers have Dealer has resold all Exchange Notes acquired by it in the Exchange Offer. The Company Issuers shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, the Initial Purchaser or any other Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company Issuers upon the request of the Initial Purchaser or any such Holder Holder, as the case may be, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchaser or any such Holder, as the case may be, in exchange (the “Private Exchange”) for such Notes held by the Initial Purchaser or any such Holder, Holder a like principal amount of notes (the “Private Exchange Notes”) of the Company Issuers that are identical in all material respects to the Exchange NotesNotes except that the Private Exchange Notes may be subject to restrictions on transfer and bear a legend to such effect. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes (if permitted by the CUSIP Service Bureau). Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuers shall have no further registration obligations other than the Issuers’ continuing registration obligations with respect to (i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which clause (c)(iv) of this Section 2 applies. In connection with the Exchange Offer, the Company Issuers shall:
(1) mail or cause to be mailed or otherwise delivered to each Holder of record, with instructions to further deliver to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company Issuers shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to by the Holders in accordance with the terms and conditions of the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each such Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Registrable Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened by any person or entity in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers Issuers, and in the Issuers’ judgment, there does not exist any other actual or threatened legal impediment to the Exchange Offer or the Private Exchange, (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem Company deems necessary for the consummation of the Exchange Offer or Private Exchange, and (iv) there shall not have occurred (A) a suspension of, or material limitation on, trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market, (B) a general moratorium declaration by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance securities in the United States, (C) an outbreak or escalation of hostilities or national or international calamity or crisis directly or indirectly involving the United States or a declaration by the United States of a national emergency or war or other national or international calamity or crisis (economic, political, financial or otherwise) which affects the U.S. and international markets. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than notifies the Initial Purchasers) Company prior to the 5th Business Day following consummation of the Exchange Offer that it is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that who participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder Holder as an affiliate of any Issuer), Issuer within the meaning of the Securities Act) or (v) the Initial Purchasers Purchaser so request requests with respect to Notes or Private Exchange Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (viv) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (William Lyon Homes), Registration Rights Agreement (William Lyon Homes)
Exchange Offer. (a) Unless As soon as reasonably practicable following the Exchange Offer would violate applicable law or any applicable interpretation date hereof, until the earlier of the staff of the Commission, the Issuers shall (i) file the receipt by PRE of a Registration Statement Ruling (as defined below) and (ii) the Closing Date, Parent and PRE shall use their respective commercially reasonable efforts to take or cause to be taken all actions and prepare all documentation reasonably required to obtain a private letter ruling from the U.S. Internal Revenue Service (“IRS”) satisfactory to Parent to the effect that (A) the issuance of the Exchange Securities (as defined below) will not result in the Exchange Securities being treated as “fast-pay stock” (within the meaning of Treasury Regulations Section 1.7701(l)-3(b)); (B) the Exchange Securities will not be part of a “fast-pay arrangement” (within the meaning of Treasury Regulations Section 1.7701(l)-3(b)); (C) the issuance or ownership of the Exchange Securities will not be treated as a “listed transaction” (within the meaning of Treasury Regulations Section 1.6011-4(b)(2)) (a “Listed Transaction”); (D) none of the Surviving Company or its shareholders will be treated as having “participated” (within the meaning of Treasury Regulations Section 1.6011-4(c)(3)) in a Listed Transaction as a result of the issuance or ownership of the Exchange Securities; or (E) the Surviving Company and its shareholders will otherwise be deemed to have satisfied, or will not be subject to, the U.S. federal income Tax requirements applicable to disclosure of Listed Transactions to the extent related to the issuance or ownership of the Exchange Securities (any of clauses (A) through (E), a “Ruling”). If PRE enters into a pre-filing agreement or a closing agreement from the IRS confirming any of the conclusions set forth in clauses (A)-(E), such agreement shall be deemed to be a Ruling for purposes of this Section 6.12.
(b) If, and only if, PRE receives a Ruling prior to the Closing Date, then the Surviving Company shall use its commercially reasonable efforts to commence an exchange offer promptly to exchange a newly issued series of preferred shares of the Surviving Company (“Exchange Offer Registration StatementSecurities”) for each series of Surviving Company Preferred Shares, with the Commission on an appropriate registration form Exchange Securities having identical terms in all material respects to the applicable series of Surviving Company Preferred Shares, except with respect to a registered offer the terms described on Exhibit A hereto, and subject to the conditions therein (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes ). The Surviving Company shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their its commercially reasonable efforts to cause complete the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within not later than 180 days after following the Issue Closing Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Surviving Company shall keep the Exchange Offer open for a period of not less than the minimum period required under applicable federal and state securities laws to consummate the Exchange Offer; provided, that in no event shall such period be less than 20 Business Days (or longer if required by applicable law) after the date of notice of the Exchange Offer is mailed to Holders. Each Holder that participates in holders of the Exchange Offer will be required to represent Surviving Company Preferred Shares.
(c) If PRE does not receive a Ruling prior to the Company in writing that Closing Date, then:
(i) any Exchange Notes As an inducement to the holders of the PRE Preferred Shares to have encouraged the PRE Board to enter into this Agreement, at or as soon as reasonably practicable following the Effective Time, Parent Guarantor shall deposit, or shall cause to be received deposited, with the Paying Agent $42,687,500 (the “Preferred Payment Fund”), which amount shall be distributed to the holders of record of PRE Preferred Shares as of the Effective Time, on a pro rata basis in accordance with their respective PRE Preferred Percentage Interest; provided, that if any PRE Preferred Shares are redeemed, repurchased or otherwise acquired by it will be acquired in the ordinary course PRE or any of its businessSubsidiaries on or after the date hereof, the Preferred Payment Fund shall be proportionately adjusted downward to ensure that each holder of record of PRE Preferred Shares as of the Effective Time is eligible to receive the same payment as such holder would have received based on the number of outstanding PRE Preferred Shares on the date hereof.
(ii) it has no arrangement At or understanding with any Person as soon as reasonably practicable following the Effective Time, Parent shall use its commercially reasonable efforts to participate obtain an opinion of Paul, Weiss, counsel to Parent, substantially in the distribution form attached hereto as Exhibit C, to the effect that the Alternate Exchange Offer (as defined below) will not result in the Alternate Exchange Securities (as defined below) being treated as “fast-pay stock” (within the meaning of Treasury Regulations Section 1.7701(l)-3(b)(2)) (the Securities Act) “Alternate Tax Opinion”). For the avoidance of doubt, Parent and Merger Sub have been advised by Paul, Weiss, that based on applicable U.S. federal income Tax Law as of the Exchange Notes in violation date hereof, as well as the facts and circumstances of the provisions PRE Preferred Shares and the Alternate Exchange Offer that exist as of the Securities Actdate hereof, (iii) it is not an affiliate consummation of the Alternate Exchange Offer (as defined in Rule 405 under below)) on the Securities Act) of any Issuer ordate hereof, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is would not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Alternate Exchange Offer Securities being treated as “fast-pay stock” (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of Treasury Regulations Section 1.7701(l)-3(b)(2)), and if the Securities Act and must deliver a prospectus meeting Surviving Company were its client, it would be able to provide to the requirements Surviving Company the Alternate Tax Opinion, in the form attached hereto as Exhibit C.
(iii) Parent shall cause the Surviving Company to use its commercially reasonable efforts to promptly commence an exchange offer on the same terms as the Exchange Offer, but without giving effect to the 100 basis point increase in the dividend rate with respect to each newly issued series of preferred shares of the Securities Act Surviving Company (such newly issued series of preferred shares, the “Alternate Exchange Securities” and such exchange offer, the “Alternate Exchange Offer”); provided, that if Parent has not received the Alternate Tax Opinion prior to commencement of the Alternate Exchange Offer, then Parent shall disclose such fact in the relevant documents prepared in connection with any resale of such Alternate Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes)Offer. The Surviving Company and shall use its commercially reasonable efforts to complete the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Alternate Exchange Offer Registration Statement includes a plan of distribution containing a statement to not later than 180 days following the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities ActClosing Date. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to The Surviving Company shall keep the Alternate Exchange Offer Registration Statement continuously effective open for a period of up not less than the minimum period required under applicable federal and state securities laws to 210 days consummate the Alternate Exchange Offer; provided, that in no event shall such period be less than 20 Business Days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation notice of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Alternate Exchange Offer is not consummated within 180 days mailed to holders of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereofSurviving Company Preferred Shares.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Exor S.p.A.), Merger Agreement (Partnerre LTD)
Exchange Offer. (a) Unless Provided that nothing shall have occurred that would result in a failure to satisfy any of the conditions set forth in this Section 6.23 of this Agreement, Parent shall, as promptly as practicable, commence the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers shall to (i) file a Registration Statement issue to all holders of Company Senior Notes validly tendered in accordance with the terms of the Exchange Offer prior to the expiration date of the Exchange Offer and not validly withdrawn (x) an aggregate of 9,314,214 shares of Parent Common Stock and (y) the Parent Senior Notes in an aggregate principal amount equal to the Parent Senior Notes Consideration Amount ((x) and (y) collectively, the “Exchange Offer Registration StatementConsideration”) with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to in exchange for any and all of the Registrable $625 million in aggregate principal amount outstanding of Company Senior Notes for a like and (ii) in the event the Company has not filed the Company Chapter 11 Cases, pay in cash on the Closing Date all accrued and unpaid interest thereon to, but excluding, the Closing Date. In the Exchange Offer, the number of shares of Parent Common Stock and the aggregate principal amount of notes (including Parent Senior Notes to be issued in exchange for each $1,000 principal amount of outstanding Company Senior Notes will vary depending on the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects aggregate principal amount of Company Senior Notes validly tendered pursuant to the Notes (except that the Exchange Notes shall not contain terms Offer. Calculations of share amounts for such purpose will be rounded down with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts each holder to cause the Exchange Offer Registration Statement to nearest whole share and no fractional shares of Parent Common Stock will be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, issued for the Company will offer the Exchange Notes in exchange for surrender of the Senior Notes. The Company shall keep the Exchange Offer open Calculations of principal amounts for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer Parent Senior Notes for such purpose will be required rounded down with respect to represent each holder to the Company nearest amount that is equal to $2,000 and integral multiples of $1,000 in writing that (i) any Exchange Notes to be received by it excess thereof and no additional shares of Parent Common Stock will be acquired issued or payment made in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if compensation for such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notesadjustments.
(b) The Company and the Initial Purchasers acknowledge that the staff obligations of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in Parent under the Exchange Offer (a “Participating Broker-Dealer”) may shall be deemed subject to be an “underwriter” within the meaning satisfaction of the Securities Act and must deliver a prospectus meeting conditions to the requirements consummation of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements Merger set forth in Article VII of this Agreement and to the preceding paragraph. Iffurther condition that, prior to consummation in the case of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery less than 97.5% of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like aggregate outstanding principal amount of notes (the “Private Exchange Notes”) Company Senior Notes and not less than a majority of the outstanding principal amount of each series of Company that are identical in all material respects to the Exchange Notes. The Private Exchange Senior Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection have been validly tendered in accordance with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part terms of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close expiration date of the Exchange Offer and not validly withdrawn (such 97.5% of the Private Exchange, if any, outstanding principal amount of the Company shall:
(1) accept for exchange all Senior Notes and no less than a majority of the outstanding principal amount of each series of Company Senior Notes validly tendered and not validly withdrawn pursuant being herein referred to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be“Minimum Participation Condition”). Except as otherwise provided in this Agreement, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer no term or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation condition of the Exchange Offer may be amended or Private Exchange. The Exchange Notes modified without the prior written consent of Company and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either caseParent, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes which consent shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matterunreasonably withheld.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 2 contracts
Sources: Merger Agreement (Bonanza Creek Energy, Inc.), Transaction Support Agreement (Bonanza Creek Energy, Inc.)
Exchange Offer. (a) Unless Upon the occurrence of an Exchange Offer would violate applicable law or in accordance with any applicable interpretation of the staff of the CommissionRegistration Rights Agreement, the Issuers shall Issuer will issue and, upon receipt of an Authentication Order, the Trustee will authenticate:
(i1) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on one or more Unrestricted Global Notes in an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects equal to the principal amount of the beneficial interests in the Restricted Global Notes tendered in an Exchange Offer by Persons that certify in the applicable Letters of Transmittal that (except that the Exchange Notes shall A) they are not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default)Broker-dealers, (iiB) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes they are not participating in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the a distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, and (iiiC) it is they are not an affiliate affiliates (as defined in Rule 405 under the Securities Act144) of any Issuer or, if it is the Issuer; and
(2) Unrestricted Definitive Notes in an affiliate, it will comply aggregate principal amount equal to the principal amount of the Restricted Definitive Notes accepted for exchange in an Exchange Offer. Concurrently with the registration and prospectus delivery requirements issuance of such Notes, the Trustee will cause the aggregate principal amount of the Securities Act applicable Restricted Global Notes to be reduced accordingly, and the Issuer will execute and the Trustee will authenticate and deliver to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution Persons designated by the Holders of Exchange Restricted Definitive Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange so accepted Unrestricted Definitive Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraphappropriate principal amount. If, prior to consummation upon completion (as determined in accordance with any Registration Rights Agreement) of the an Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment not exchanged in an initial distribution, or if any Holder is not entitled to participate in the such Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, Issuer may thereafter issue and deliver to any such Holder, in exchange (the a “Private Exchange”) for such those Notes held by any such Holder, a like principal amount of notes debt securities of the Issuer issued under this Indenture and identical in all material respects to such Notes (the “Private Exchange Notes”) of ); provided that the Company that are identical in all material respects Issuer shall have obtained certifications and other evidence reasonably satisfactory to the Issuer that any such Holder may receive Private Exchange NotesNotes in such Private Exchange in compliance with applicable securities laws. The Exchange Notes issued in an Exchange Offer and the related Private Exchange Notes shall be issued pursuant to in the same indenture as series under this Indenture and shall have the same CUSIP, Common Code, ISIN and/or other identification numbers. For the avoidance of doubt, interest on any Exchange Notes and bear will accrue (A) from the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy later of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as last interest payment date on which interest was paid on the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened Notes surrendered in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture exchange therefor or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and if the Notes shall vote and consent together are surrendered for exchange on all matters as one class and a date in a period that none of includes the Exchange Notes, the Private Exchange Notes record date for an interest payment date to occur on or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on after the date of such exchange and as to which interest will be paid, the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status date of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution interest payment date or (viB) any Holder if no interest has been paid on such Notes, from the date of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereoftheir original issue.
Appears in 2 contracts
Sources: Indenture (Virgin Media Inc.), Indenture (Virgin Media Inc.)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the The Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) within 180 days after the Issue Date with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their all commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts on or prior to consummate the Exchange Offer within 180 210 days after the Issue Date. Upon ; provided that, the Issuers’ obligations to have the Exchange Offer Registration Statement declared effective shall be suspended until the date which is 60 days following the date upon which audited financial statements for the year ended December 31, 2005 first become available, to the extent that the Exchange Offer Registration Statement is prevented from being declared effective due to Parent’s (or the applicable Issuer’s) inability to produce five years of selected financial information as required by Item 301 of Commission Regulation S-K, and (iii) unless the Exchange Offer would not be permitted by applicable law or Commission policy, (a) commence the Exchange Offer and (b) use all commercially reasonable efforts to issue on or prior to 30 Business Days, or longer, if required by the federal securities laws, after the date on which the Exchange Offer Registration Statement was declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep all Notes validly tendered and not withdrawn prior thereto in the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to HoldersOffer. Each Holder that participates in the Exchange Offer will be required to represent to the Company Issuers in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate of the Issuers (as defined in Rule 405 under within the meaning of the Securities Act) of any Issuer or, if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and Notes, (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange NotesNotes and (vi) such Holder has full power and authority to transfer the Notes in exchange for the Exchange Notes and that MagnaChip and the Co-Issuer will acquire good and unencumbered title thereto free and clear of any liens, restrictions, charges or encumbrances and not subject to any adverse claims.
(b) The Company Issuers and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuers and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their all commercially reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up not to 210 exceed 180 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company Issuer in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company Issuers shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, the Initial Purchasers or any Holder Holder, as the case may be, holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company Issuers upon the request of the Initial Purchasers or any such Holder Holder, as the case may be, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasers or any such Holder, as the case may be, in exchange (the “Private Exchange”) for such Notes held by the Initial Purchasers or any such Holder, as the case may be, a like principal amount of notes (the “Private Exchange Notes”) of the Company Issuers that are identical in all material respects to the Exchange NotesNotes except that the Private Exchange Notes may be subject to restrictions on transfer and bear a legend to such effect. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes (if permitted by the CUSIP Service Bureau). Interest on each Exchange Note and Private Exchange Note issued pursuant to the Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the Issue Date. Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuers shall have no further registration obligations other than the Issuers’ continuing registration obligations with respect to (i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which clause (c)(iii) of this Section 2 applies. In connection with the Exchange Offer, the Company Issuers shall:
(1) mail or cause to be mailed to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate thereof;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn by the Holders pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each such Holder of tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Registrable Notes of such Holder so accepted for exchange; provided that in the case of any Registrable Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Exchange Notes or Private Exchange Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem deems necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIATIA or exemption from such qualification) and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 20 days of the Issue Datelast day permitted by Section 2(a) hereof, (iii) prior to the 20th day following consummation of the Exchange Offer, any Holder (Holder, other than the Initial Purchasers) , notifies the Issuers that it is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange OfferOffer or, (iv) in that it may not resell the case of any Holder that participates Exchange Notes received by it in the Exchange Offer, Offer without delivering a prospectus and the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws resales (other than due solely to the status of such holder Holder as an affiliate of the Issuers within the meaning of the Securities Act) or (iv) in the case of any Issuer)Initial Purchaser that participates in the Exchange Offer or acquires Private Exchange Notes, (v) such Initial Purchaser notifies the Initial Purchasers so request with respect to Issuers that it will not or did not receive freely tradeable Exchange Notes in the Exchange Offer in exchange for Notes or Private Exchange Notes that have, or that are reasonably likely to be determined to have, have the status of unsold allotments in an initial distribution or (vi) any Holder provided that the requirement that a Participating Broker-Dealer deliver a Prospectus in connection with sales of Private Exchange Notes so requests (each acquired in the Exchange Offer in exchange for Notes acquired as a result of market-making activities or other trading activities shall not result in such Exchange Notes being not “freely tradeable”)(each such event referred to in clauses (i) through (viiv) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (MagnaChip Semiconductor LTD (United Kingdom)), Registration Rights Agreement (MagnaChip Semiconductor LTD (United Kingdom))
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain restrictive legends, terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable best efforts to consummate the Exchange Offer within 180 270 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company Issuers will offer the Exchange Notes in exchange for surrender of the Notes. The Company Issuers shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company Issuers in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (of the Company or any Guarantor as defined in by Rule 405 under of the Securities Act) of any Issuer or, or if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged en- gaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange Notes.
(b) The Company Issuers and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuers and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up necessary to 210 comply with applicable law in connection with such resales but in no event more than 180 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to any Delay Period in accordance with the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all each Requesting Participating Broker-Dealers Dealer shall have notified the Company in writing that such Requesting Participating Broker-Dealers have Dealer has resold all Exchange Notes acquired by it in the Exchange Offer. The Company Issuers shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Initial Purchaser or any other Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company Issuers upon the request of the Initial Purchasers or any such Holder Holder, as the case may be, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasers or any such Holder, as the case may be, in exchange (the “Private Exchange”) for such Notes held by such Initial Purchaser or any such Holder, Holder a like principal amount of notes (the “Private Exchange Notes”) of the Company Issuers that are identical in all material respects to the Exchange NotesNotes except that the Private Exchange Notes may be subject to restrictions on transfer and bear a legend to such effect. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes (if permitted by the CUSIP Service Bureau). Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuers shall have no further registration obligations other than the Issuers’ continuing registration obligations with respect to (i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which clause (c)(iv) of this Section 2 applies. In connection with the Exchange Offer, the Company Issuers shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company Issuers shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn by the Holders pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each such Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Registrable Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem Company deems necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in the applicable law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 270 days of the Issue Date, (iii) any Holder (other than notifies the Initial Purchasers) Company prior to the 20th Business Day following consummation of the Exchange Offer that it is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that who participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder Holder as an affiliate of any Issuer), Issuer within the meaning of the Securities Act) or (v) the any Initial Purchasers Purchaser so request requests with respect to Notes or Private Exchange Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (viv) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (Basic Energy Services Inc), Purchase Agreement (Basic Energy Services Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice occurrence of the Exchange Offer is mailed to Holders. Each Holder that participates in accordance with the Exchange Offer will be required to represent to Registration Rights Agreement, the Company shall issue and, upon receipt of a Company Order in writing that accordance with Section 2.3 of the Indenture and an Opinion of Counsel for the Company as to certain matters discussed in this Section 6.01(f), the Trustee shall authenticate (i) any Exchange one or more Unrestricted Global Notes in an aggregate principal amount equal to be received by it will be acquired the sum of (A) the principal amount of the beneficial interests in the ordinary course Restricted Global Notes tendered for acceptance by Persons who certify in the applicable Letters of its businessTransmittal that (x) they are not Broker-Dealers, (iiy) it has no arrangement or understanding with any Person to participate they are not participating in the a distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, and (iiiz) it is they are not an affiliate affiliates (as defined in Rule 405 under the Securities Act144) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged inCompany, and does not intend to engage in, a distribution of accepted for exchange in the Exchange Notes Offer and (vB) if such Holder is a broker-dealer that will receive Exchange the principal amount of Certificated Notes exchanged or transferred for its own account beneficial interests in exchange for Unrestricted Global Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such the Exchange Notes.
Offer pursuant to Section 6.01(d)(ii) and (bii) The Company and Certificated Notes in an aggregate principal amount equal to the Initial Purchasers acknowledge that the staff principal amount of the Commission has taken the position that any broker-dealer that elects to Restricted Certificated Notes accepted for exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”other than Certificated Notes described in clause (i)(B) may be deemed to be an “underwriter” within immediately above). Concurrently with the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale issuance of such Exchange Notes (other than a resale of an unsold allotment resulting from Notes, the original offering Trustee shall cause the aggregate principal amount of the Notes)applicable Restricted Global Notes to be reduced accordingly, and the Company shall execute and, upon receipt of a Company Order pursuant to Section 2.3 of the Indenture, the Trustee shall authenticate and deliver to the Persons designated by the Holders of Certificated Notes so accepted Certificated Notes in the appropriate principal amount. The Opinion of Counsel for the Company referenced above shall state that:
(1) the Exchange Notes have been duly authorized and, when executed and authenticated in accordance with the Initial Purchasers also acknowledge that the staff provisions of the Commission has taken Indenture delivered in exchange for Series U Notes in accordance with the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect Indenture and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to will be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally, (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability and (z) other customary limitations and exceptions for opinions of such type; and (2) when the Exchange Notes are executed and authenticated in accordance with the provisions of the Indenture and delivered in exchange for Series U Notes in accordance with the Indenture and the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery Guarantee of the Exchange Notes in by the Exchange Offer, issue and deliver Subsidiary Guarantors will be entitled to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) benefits of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall Indenture and will be issued pursuant to the same indenture as the Exchange Notes valid and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy binding obligations of the Prospectus forming part of the Exchange Offer Registration StatementSubsidiary Guarantors, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation enforceable in accordance with Section 5(ttheir terms except as (x) all Notes so accepted for exchange; and
the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally, (3y) cause the Trustee to authenticate and deliver promptly to each Holder rights of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer acceleration and the Private Exchange shall not availability of equitable remedies may be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation limited by equitable principles of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers general applicability and (iiiz) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary other customary limitations and exceptions for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) opinions of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereoftype.
Appears in 2 contracts
Sources: Supplemental Indenture (Host Hotels & Resorts L.P.), Supplemental Indenture (Host Hotels & Resorts, Inc.)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange Notes.
(b) The Company and the Initial Purchasers Purchaser acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers Purchaser also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (Beazer Homes Usa Inc), Registration Rights Agreement (Beazer Homes Usa Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the The Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) within 120 days after the Issue Date with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes bear no restrictive legend thereon and shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially respective reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act within 180 days after the Issue Date and (iii) use their commercially respective reasonable best efforts to consummate complete the Exchange Offer within 180 240 days after the Issue Date. The Exchange Offer shall be deemed completed or consummated for purposes of this Agreement upon delivery by the Company to the Trustee under the Indenture of Exchange Notes in the same aggregate principal amount as the aggregate principal amount of Notes tendered (and not withdrawn) by Holders thereof pursuant to the Exchange Offer. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days 30 days (or longer if required by applicable lawlaw to complete the Exchange Offer) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates 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 (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and Notes, (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange NotesNotes and (vi) the Holder is not acting on behalf of any Persons who could not truthfully make the foregoing representations.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 180 days after the date on which the Exchange Offer Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes, except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers that would impair their ability to so proceed and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. In the event that the Issuers are unable to consummate the Exchange Offer or the Private Exchange due to any event listed in clauses (i) through (iii) above, the Issuers shall not be deemed to have breached any covenant under this Section 2. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such other indenture shall provide that when a vote or consent of the Holders is required, the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 240 days of the Issue Date, (iii) any Holder (other than notifies the Initial Purchasers) Company that it is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (Meritage Homes CORP), Registration Rights Agreement (Meritage Homes CORP)
Exchange Offer. (a) Unless the Exchange Offer would violate not be permitted by applicable law laws or any applicable interpretation interpretations of the staff of the CommissionSEC, the Issuers and the Guarantors shall use their commercially reasonable efforts to (i) prepare and file with the SEC a Registration Statement registration statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form under the Securities Act with respect to a registered an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange any and all of for the Registrable Notes for Notes, a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared become effective under on or before the Securities Act and Effectiveness Date, (iii) use their commercially reasonable efforts to consummate keep the Exchange Registration Statement effective until the consummation of the Exchange Offer within 180 days after the Issue Date. Upon in accordance with its terms, and (iv) commence the Exchange Offer and issue on or before the 30th Business Day after the date on which the Exchange Registration Statement being is declared effective by the Commissioneffective, the Company will offer the Exchange Notes in exchange for surrender all Notes validly tendered prior thereto in the Exchange Offer. Other than as set forth in this Agreement, including in Section 2(d) hereto, the Exchange Offer shall not be subject to any conditions.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of the Indenture or a trust indenture that is identical to the Indenture.
(c) Interest on the Exchange Notes will accrue from the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes. .
(d) The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed Issuers may require each Holder as a condition to Holders. Each Holder that participates participation in the Exchange Offer will be required to represent to the Company in writing that (i) that any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it that at the time of the commencement and consummation of the Exchange Offer such Holder has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) that it is not an affiliate “affiliate” of the Issuers (as defined in within the meaning of Rule 405 under of the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, a the distribution of Exchange the Notes and (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Issuers and the Guarantors shall include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that will receive is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer activity (a “Participating Broker-Dealer”) may be deemed ). Such “Plan of Distribution” section shall also allow, to be an “underwriter” within the meaning extent permitted by applicable policies and regulations of the Securities Act and must deliver a SEC, the use of the Prospectus by all Persons subject to the prospectus meeting the delivery requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from Act, including, to the original offering of the Notes). The Company extent so permitted, all Participating Broker-Dealers, and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing include a statement to describing the above effect and the means by manner in which Participating Broker-Dealers may resell the Exchange Notes, without naming . The Issuers and the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to Guarantors shall use their commercially reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a and to amend and supplement the Prospectus contained therein, in order to keep such Prospectus current during the period described in Section 4(a)(3) of up the Securities Act and Rule 174 thereunder that is applicable to 210 days after the date on which the transactions by brokers or dealers with respect to Notes or Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof Notes (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange .
(the “Private Exchange”f) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company Issuers and the Guarantors shall:
(1i) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal that is an exhibit to the Exchange Registration Statement, and any related documents;
(2ii) keep the Exchange Offer open for not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) and until the Issuers have accepted all Notes validly tendered in accordance with the terms of the Exchange Offer;
(iii) utilize the services of a depositary depository for the Exchange Offer with an address in the Borough of Manhattan, The the City of New York, which may be the Trustee or an affiliate thereof;
(3iv) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4v) otherwise comply in all material respects with all applicable laws, rules and regulations. .
(g) As soon as practicable after the close of the Exchange Offer Offer, the Issuers and the Private Exchange, if any, the Company Guarantors shall:
(1i) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchangenot validly withdrawn;
(2ii) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3iii) cause the Trustee to authenticate and deliver promptly to each Holder of tendering such Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. .
(h) The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either caseIndenture, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall which will provide that the Exchange Notes shall will not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide and that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as Notes, if any, will be deemed one class and that none of security (subject to the provisions of the Exchange Notes, Indenture) and entitled to participate in any Note Guarantee (as such term is defined in the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class Indenture) on any matteran equal and ratable basis.
(c) In the event that (i) any changes in law If:
(1) the Issuers and the Guarantors determine that applicable laws or the applicable interpretations of the staff of the Commission do SEC would not permit the Issuers to effect consummation of the Exchange Offer, Offer on or prior to the 30th Business Day following the Effectiveness Date;
(ii2) for any reason the Exchange Offer is not consummated within 180 days on or prior to the 90th Business Day following the Effectiveness Date (provided that this shall not affect the obligations of the Issue Date, Issuers to pay Additional Interest after the 30th such Business Day pursuant to Section 4(a)); or
(iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv3) in the case of any Holder Initial Purchaser representing that, on advice of counsel, it holds Registrable Notes that participates are or were ineligible to be exchanged in the Exchange Offer and such Initial Purchaser notifies the Issuers within six months of consummation of the Exchange Offer, then, the Issuers and the Guarantors shall use their commercially reasonable efforts to promptly deliver to the Holders (in the case of clauses (1) and (2) above), the applicable Initial Purchaser (in the case of clause (3) above) and the Trustee notice thereof (the “Shelf Notice”) and shall within 90 days of receipt of a written request from any such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely or Initial Purchaser, use their commercially reasonable efforts to the status of such holder as an affiliate of any Issuer), (v) cause the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely Shelf Registration described in Section 3 to be determined to have, declared effective by the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereofSEC.
Appears in 2 contracts
Sources: Registration Rights Agreement (CyrusOne Inc.), Registration Rights Agreement (CyrusOne Inc.)
Exchange Offer. (a) Unless a. To the Exchange Offer would violate extent not prohibited by any applicable law or any applicable interpretation of the SEC or the staff of the CommissionSEC, the Issuers shall (iA) prepare and, on or prior to 60 days after the date of original issuance of the Notes (the "Issue Date"), file with the SEC a Registration Statement (under the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form Securities Act with respect to a registered an offer (by the “Exchange Offer”) Company to exchange any and all the holders of the Registrable Notes to issue and deliver to such holders, in exchange for Notes, a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (iiB) use their commercially reasonable best efforts to cause the Registration Statement relating to the Exchange Offer Registration Statement to be declared effective by the SEC under the Securities Act and (iii) use their commercially reasonable efforts on or prior to consummate the Exchange Offer within 180 days after the Issue Date, and (C) commence the Exchange Offer and use best efforts to issue, on or prior to the Consummation Date, the Exchange Notes. The offer and sale of the Exchange Notes pursuant to the Exchange Offer shall be registered pursuant to the Securities Act on the appropriate form (the "Exchange Offer Registration Statement") and duly registered or qualified under all applicable state securities or Blue Sky laws and will comply with all applicable tender offer rules and regulations under the Exchange Act and state securities or Blue Sky laws. The Exchange Offer shall not be subject to any condition, other than that the Exchange Offer does not violate any applicable law or interpretation of the SEC or the staff of the SEC. Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuers shall have no further registration obligations other than with respect to (i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which Section 3(a)(ii) hereof applies. No securities shall be included in the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer other than the Exchange Notes.
b. The Issuers may require each holder of Notes as a condition to its participation in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days to represent to the Issuers and their counsel in writing (or longer if required by which may be contained in the applicable lawletter of transmittal) after that at the date notice time of the consummation of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it such holder will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.will
Appears in 2 contracts
Sources: Registration Rights Agreement (Dailey International Inc), Registration Rights Agreement (Dailey Petroleum Services Corp)
Exchange Offer. (a) Unless To the Exchange Offer would violate extent not prohibited by applicable law laws, rules, regulations or any applicable interpretation interpretations of the staff of the CommissionSEC, the Issuers Company shall (i) file with the SEC, no later than the Filing Date, a Registration Statement (the “Exchange Offer Registration Statement”"EXCHANGE OFFER REGISTRATION STATEMENT") with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”"EXCHANGE OFFER") to exchange any and all of the Registrable Notes for a like the same aggregate principal amount of notes (including the guarantees with respect thereto, "EXCHANGE NOTES") of the “Exchange Notes”) Company that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms no restrictive legend thereon. The Exchange Offer shall comply with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Company shall use their commercially its reasonable best efforts to (x) cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and on or before the Effectiveness Date; (iiiy) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days business days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 45th day following the date on which the Exchange Offer Registration Statement is declared effective by the SEC. If, after the Exchange Offer Registration Statement is initially declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Notes thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, the Exchange Offer Registration Statement shall be deemed not to have become effective for purposes of this Agreement. Each Holder that participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has 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 (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it and that such Holder is not an affiliate (as defined in Rule 405 under of the Company within the meaning of the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements . Upon consummation of the Securities Act Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to the extent applicableapply, (ivsolely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) if such Holder is not a brokerapplicable and Exchange Notes held by Participating Broker-dealer, it is not engaged inDealers, and does not intend the Company shall have no fur- ther obligation to engage in, a distribution of register Registrable Notes (other than Private Exchange Notes and (v) if such Holder is a broker-dealer that will receive other than in respect of any Exchange Notes for its own account as to which clause 2(c)(iv) hereof applies) pursuant to this Agreement. No securities other than the Exchange Notes shall be included in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such the Exchange NotesOffer Registration Statement.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” shall include within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan section entitled "Plan of distribution containing a statement Distribution," reasonably acceptable to the above effect and the means by Holders, which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, shall contain such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long information as the Prospectus otherwise meets the requirements of the Securities ActInitial Purchasers shall reasonably request. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to The Company shall use their its reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for a such period of up time as is necessary to 210 comply with applicable law in connection with any resale of the Exchange Notes covered thereby; PROVIDED, HOWEVER, that such period shall not exceed 180 days after the date on which the such Exchange Offer Registration Statement is declared effective, effective (or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof hereof) (such period, the “Applicable Period”"APPLICABLE PERIOD"), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds the Initial Purchasers hold any Notes acquired by it them that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”"PRIVATE EXCHANGE") for such Notes held by any such Holder, a like the same principal amount of notes (the “Private Exchange Notes”"PRIVATE EXCHANGE NOTES") of the Company that are identical in all material respects to the Exchange NotesNotes (except that they may bear a customary legend with respect to restrictions on transfer). The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes Notes. The Company shall use its reasonable best efforts to cause the Private Exchange Notes, subsequent to the sale thereof pursuant to an effective Shelf Registration (as defined in Section 3(b) hereof) and removal of any legends restricting the transfer of such Private Exchange Notes, to bear the same CUSIP number as the Exchange Notes. Interest on the Exchange Notes and the Private Exchange Notes will accrue from (A) the later of (i) the last in- terest payment date on which interest was paid on the Notes surrendered in exchange therefor or (ii) if the Notes are surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment or (B) if no interest has been paid on the Notes, from the Issue Date. In connection with the Exchange Offer, the Company shall:
(1) mail mail, or cause to be mailed mailed, to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) keep the Exchange Offer open for not less than 20 business days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(34) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day business day on which the Exchange Offer shall remain open; and
(45) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the CommissionSEC, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might would be reasonably likely to materially impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers Company and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem Company deems necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that If, (i) because of any changes change in law or the applicable in currently prevailing interpretations of the staff of the Commission do SEC, the Company is not permit the Issuers permitted to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law Purchasers or any holder of Private Exchange Notes so requests in writing to the applicable interpretations Company at any time after the consummation of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder Holder as an affiliate of any Issuer)the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, (v) in the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status case of unsold allotments in an initial distribution or (vi) any Holder each of Private Exchange Notes so requests (each such event referred to in clauses (i) through to and including (viiv) of this sentence, a “Shelf Filing Event”), then the Issuers Company shall promptly deliver to the Holders and the Trustee written notice thereof (the "SHELF NOTICE") and as promptly as possible shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (Big Flower Press Holdings Inc /Pred/), Registration Rights Agreement (Big Flower Holdings Inc/)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission within 270 days after the Issue Date on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain restrictive legends, terms with respect to transfer restrictions or Liquidated Damages Additional Interest upon a Registration Default), (ii) use their commercially reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act within 360 days after the Issue Date and (iii) use their commercially reasonable best efforts to consummate the Exchange Offer within 180 390 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company Issuers will offer the Exchange Notes in exchange for surrender of the Notes. The Company Issuers shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company Issuers in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (of the Company or any Guarantor as defined in by Rule 405 under of the Securities Act) of any Issuer or, or if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and Notes, (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange NotesNotes and (vi) such Holder has the full power and authority to transfer the Notes in exchange for the Exchange Notes and that the Issuers will acquire good and unencumbered title thereto free and clear of any liens, restrictions, charges or encumbrances and not subject to any adverse claims.
(b) The Company Issuers and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuers and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested in writing not later than 30 Business Days following completion of the Exchange Offer, by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up necessary to 210 comply with applicable law in connection with such resales but in no event more than 180 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to any Delay Period in accordance with the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all each Requesting Participating Broker-Dealers Dealer shall have notified the Company in writing that such Requesting Participating Broker-Dealers have Dealer has resold all Exchange Notes acquired by it in the Exchange Offer. The Company Issuers shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Initial Purchaser or any other Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company Issuers upon the request of the Initial Purchasers or any such Holder Holder, as the case may be, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasers or any such Holder, as the case may be, in exchange (the “Private Exchange”) for such Notes held by such Initial Purchaser or any such Holder, Holder a like principal amount of notes (the “Private Exchange Notes”) of the Company Issuers that are identical in all material respects to the Exchange NotesNotes except that the Private Exchange Notes may be subject to restrictions on transfer and bear a legend to such effect. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes (if permitted by the CUSIP Service Bureau). Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuers shall have no further registration obligations other than the Issuers’ continuing registration obligations with respect to (i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which clause (c)(iv) of this Section 2 applies. In connection with the Exchange Offer, the Company Issuers shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company Issuers shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn by the Holders pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each such Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Registrable Notes of such Holder so accepted for exchange; provided that in the case of any Registrable Notes held in global form by a depositary, authentication and delivery to such depositary of one or more Exchange Notes in global form in an equivalent principal amount therefor for the account of such Holder in accordance with the Indenture shall satisfy such authentication and delivery requirements. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem Company deems necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 390 days of the Issue Date, (iii) any Holder (other than notifies the Initial Purchasers) Company prior to the 20th day following consummation of the Exchange Offer that it is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that (other than any Initial Purchaser) who participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder Holder as an affiliate of any Issuer), Issuer within the meaning of the Securities Act) or (v) the any Initial Purchasers Purchaser so request requests with respect to Notes or Private Exchange Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (viv) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (Johnstone Tank Trucking Ltd.), Registration Rights Agreement (Johnstone Tank Trucking Ltd.)
Exchange Offer. (a) Unless The Company shall prepare and, within 60 -------------- days after the Exchange Offer would violate applicable law or any applicable interpretation date of original issuance of the staff of the Commission, the Issuers shall (i) file a Registration Statement Notes (the “"Issue Date"), file with the Securities and Exchange Commission (the "Commission") a registration statement (the "Exchange Offer Registration Statement”") with the Commission on an appropriate registration form under the Securities Act of 1933, as amended (the "Securities Act"), with respect to a registered proposed offer (the “"Exchange Offer”") to exchange any and all the Holders of the Registrable Notes to issue and deliver to such Holders, in exchange for the Notes, a like aggregate principal amount of notes (including debt securities of the guarantees with respect thereto, the “Exchange Notes”) that are Company identical in all material respects to the Notes (the "Exchange Notes"), except that for the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) relating to the Notes. The Company shall use their commercially reasonable its best efforts to cause the such Exchange Offer Registration Statement to be declared become effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon The Company shall commence the Exchange Offer promptly following the declaration of the effectiveness of the Exchange Offer Registration Statement Statement, it being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice objective of the Exchange Offer to enable each Holder of the Notes to exchange such Holder's Notes for a like principal amount of Exchange Notes and (assuming that such Holder is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to not an affiliate of the Company in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of acquires the Exchange Notes in the Exchange Offer, issue and deliver to any ordinary course of such Holder, 's business and has no arrangements with any person to participate in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount distribution of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private ) to trade such Exchange Notes shall be issued pursuant to from and after their receipt without any limitations or restrictions under the same indenture as Securities Act and the Exchange Notes and bear securities laws of the same CUSIP number as several states of the Exchange NotesUnited States. In connection with the Exchange Offer, the Company shall:
(1shall take such further action, including, without limitation, appropriate filings under state securities laws, as may be necessary to realize the foregoing objective, subject, however, to the proviso of Section 3(h) mail or cause to below. If the Company effects the Exchange Offer, the Company will be mailed to each Holder entitled to participate close the Exchange Offer 30 days after the effective date of the related Registration Statement, provided that the Company has accepted all of the Notes theretofore validly tendered in accordance with the terms of the Exchange Offer. The Company shall include within the prospectus contained in the Exchange Offer Registration Statement a copy section entitled "Plan of Distribution", reasonably acceptable to the Initial Purchaser, which shall contain a summary statement of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver positions taken or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or policies made by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the potential "underwriter" status of unsold allotments any broker-dealer that is the beneficial owner (as defined in an initial distribution or Rule 13d-3 under the Securities Exchange Act of 1934, as amended (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.the
Appears in 1 contract
Sources: Registration Rights Agreement (Wilshire Financial Services Group Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission within 60 days after the Issue Date with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount at maturity of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain restrictive legends, terms with respect to transfer restrictions or Liquidated Damages Additional Interest upon a Registration Default), (ii) use their commercially reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act within 150 days after the Issue Date and (iii) use their commercially reasonable best efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company Issuers will offer the Exchange Notes in exchange for surrender of the Notes. The Company Issuers shall keep the Exchange Offer open for not less than 20 Business Days 30 days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company Issuers in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (of the Company, the Co-Issuer or any Guarantor as defined in by Rule 405 under of the Securities Act) of any Issuer or, or if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and Notes, (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange Notes, and (vi) such Holder has full power and authority to transfer the Notes in exchange for the Exchange Notes and that the Issuers will acquire good and unencumbered title thereto (other than restrictions on transfer imposed by applicable law) and not subject to any adverse claims.
(b) The Company Issuers and the Initial Purchasers Purchaser acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuers and the Initial Purchasers Purchaser also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up necessary to 210 comply with applicable law in connection with such resales but in no event more than 180 days after the date on which the Exchange Offer Registration Statement is declared effective, or such longer period if extended pursuant to any Delay Period in accordance with the penultimate last paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all each Requesting Participating Broker-Dealers Dealer shall have notified the Company in writing that such Requesting Participating Broker-Dealers have Dealer has resold all Exchange Notes acquired by it in the Exchange Offer. The Company Issuers shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, the Initial Purchaser or any Holder Holder, as the case may be, holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company Issuers upon the request of the Initial Purchaser or any such Holder Holder, as the case may be, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchaser or any such Holder, as the case may be, in exchange (the “Private Exchange”) for such Notes held by the Initial Purchaser or any such Holder, as the case may be, a like principal amount at maturity of notes (the “Private Exchange Notes”) of the Company Issuers that are identical in all material respects to the Exchange NotesNotes except that the Private Exchange Notes may be subject to restrictions on transfer and bear a legend to such effect. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes (if permitted by the CUSIP Service Bureau). The Company, the Co-Issuer and the Guarantors shall use their reasonable best efforts to cause the Existing Exchange Notes and the Exchange Notes to have the same unrestricted CUSIP number. Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuers shall have no further registration obligations other than the Issuers’ continuing registration obligations with respect to (i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which clause (c)(iv) of this Section 2 applies. In connection with the Exchange Offer, the Company Issuers shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn by the Holders pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each such Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount at maturity to the Registrable Notes of such Holder so accepted for exchange; provided, however, that in the case of any Registrable Notes held in global form by a depository, authentication and delivery to such depository of one or more Exchange Notes or Private Exchange Notes in global form in such amount shall satisfy such requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem Company deems necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (Holder, other than an Initial Purchaser, notifies the Initial Purchasers) Company prior to the 30th day following consummation of the Exchange Offer that it is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that who participates in the Exchange Offeroffer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), Issuer within the meaning of the Securities Act) or (v) the Initial Purchasers Purchaser so request with respect to Notes or Private Exchange Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (viv) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Norcraft Holdings, L.P.)
Exchange Offer. (a) Unless Upon the occurrence of the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) in accordance with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the CommissionRights Agreement, the Company will offer issue, under the Exchange Indenture and, upon receipt of an authentication order in accordance with the Indenture, the Trustee will authenticate one or more Unrestricted Global Notes in exchange for surrender an aggregate principal amount equal to the principal amount of the Notes. The Company shall keep beneficial interests in the Exchange Offer open Restricted Global Notes accepted for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates exchange in the Exchange Offer will be required to represent to by each Person that certifies in the Company in writing applicable letter of transmittal (A) that (i) any Exchange Notes Securities to be received by it will be acquired in the ordinary course of its business, (iiB) that at the time of the commencement of the Exchange Offer, it has no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act) of the any Exchange Notes Securities in violation of the provisions of the Securities Act, (iiiC) that it is not an affiliate “affiliate” (as defined in Rule 405 promulgated under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicableCompany, (ivD) if such Holder Person is not a broker-dealer, that it is not engaged in, and does not intend to engage in, a the distribution of any Exchange Notes Securities; and (vE) if such Holder Person is a broker-dealer that will receive Exchange Notes Securities for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, that it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from Securities.. Following the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, the Exchange Securities will be treated as the same series as the original Notes. Concurrently with the issuance of such Exchange Securities, the Trustee will cause the aggregate principal amount of the Restricted Global Notes to be reduced accordingly. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF. THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAW AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO THE COMPANY OR ONE OF ITS AFFILIATES, (2) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, REPRESENTS AND AGREES THAT IT SHALL NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO ABOVE. Prior to the expiration of the Restricted Period each Regulation S Note shall bear the following additional legend: THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAW AND MAY NOT BE OFFERED, SOLD OR DELIVERED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY US PERSON, UNLESS SUCH SECURITIES ARE REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREOF IS AVAILABLE. THE FOREGOING SHALL NOT APPLY FOLLOWING THE EXPIRATION OF FORTY DAYS FROM THE LATER OF (I) THE DATE ON WHICH THESE SECURITIES WERE FIRST OFFERED AND (II) THE DATE OF ISSUANCE OF THESE SECURITIES. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, REPRESENTS AND AGREES THAT IT SHALL NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO ABOVE. No. A-___ CUSIP: 78409VAT11 U75091 AF22 ISIN: US78409VAT171 USU75091AF242 S&P GLOBAL INC., a New York corporation (herein called the “Company,” which term includes any Holder holds any Notes acquired by it that havesuccessor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to [Cede & Co.]3 [S&P Global Market Intelligence Inc.]4, or that are reasonably likely to be determined to haveregistered assigns, the status principal sum of an unsold allotment in an initial distribution$___ on November 1, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange 2022 (the “Private ExchangeMaturity Date”) for such Notes held by any such Holder(except to the extent redeemed or repaid prior to the Maturity Date) and to pay interest thereon from March 2, a like principal amount of notes 2022 (the “Private Exchange NotesOriginal Issue Date”) or from the most recent Interest Payment Date to which interest has been paid or duly provided for semi-annually at the rate of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time5.000% per annum, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules May 1 and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests November 1 (each such event referred to in clauses (i) through (vi) of this sentencedate, a an “Shelf Filing EventInterest Payment Date”), then commencing May 1, 2022, until the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereofprincipal hereof is paid or made available for payment.
Appears in 1 contract
Exchange Offer. (a) Unless The Issuer and the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers Guarantors shall (i) file a Registration Statement (the “"Exchange Offer Registration Statement”") within 90 days after the Issue Date with the Commission on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “"Exchange Notes”") that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act within 180 days after the Issue Date and (iii) use their commercially reasonable best efforts to consummate the Exchange Offer within 180 210 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company Issuer and the Guarantors will offer the Exchange Notes in exchange for surrender of the Notes. The Company Issuer and the Guarantors shall keep the Exchange Offer open for not less than 20 Business Days 30 days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company Issuer and the Guarantors in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer Act or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iviii) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and Notes, (viv) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange NotesNotes and (v) such Holder has full power and authority to transfer the Notes in exchange for the Exchange Notes and that the Issuer will acquire good and unencumbered title thereto free and clear of any liens, restrictions, charges or encumbrances and not subject to any adverse claims.
(b) The Company Issuer, the Guarantors and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “"Participating Broker-Dealer”") may be deemed to be an “"underwriter” " within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuer, the Guarantors and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker"REQUESTING PARTICIPATING BROKER-Dealer”DEALER"), the Issuers Issuer and the Guarantors agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up not to 210 exceed 180 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof (such period, the “Applicable Period”"APPLICABLE PERIOD"), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company Issuer in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company Issuer and the Guarantors shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, the Initial Purchasers or any Holder Holder, as the case may be, holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company Issuer upon the request of the Initial Purchasers or any such Holder Holder, as the case may be, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasers or any such Holder, as the case may be, in exchange (the “Private Exchange”"PRIVATE EXCHANGE") for such Notes held by the Initial Purchasers or any such Holder, as the case may be, a like principal amount of notes (the “Private Exchange Notes”"PRIVATE EXCHANGE NOTES") of the Company Issuer that are identical in all material respects to the Exchange NotesNotes except that the Private Exchange Notes may be subject to restrictions on transfer and bear a legend to such effect. The Private Exchange Notes shall be issued pursuant to the same indenture Indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. For each Note surrendered in the Exchange Offer, the Holder will receive an Exchange Note having a principal amount equal to that of the surrendered Note. Interest on each Exchange Note and Private Exchange Note issued pursuant to the Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the Issue Date. Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuer and the Guarantors shall have no further registration obligations other than the Issuer's and the Guarantors' continuing registration obligations with respect to (i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which clause (c)(iii) of this Section 2 applies. In connection with the Exchange Offer, the Company Issuer and the Guarantors shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal (if any) and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company Issuer and the Guarantors shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn by the Holders pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each such Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Registrable Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable applica- ble law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Issuer and the Guarantors to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers Issuer or the Guarantors and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem Issuer deems necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture indentures shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers Issuer and the Guarantors to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 210 days of after the Issue Date, (iii) any Holder (Holder, other than the Initial Purchasers) , is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder Offer or does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of the Issuer or any Issuer), Guarantor within the meaning of the Securities Act) or (viv) the Initial Purchasers Purchaser so request requests with respect to Notes or Private Exchange Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (viiv) of this sentence, a “"Shelf Filing Event”"), then the Issuers Issuer and the Guarantors shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (GSE Lining Technology, Inc.)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the The Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) within 120 days after the Issue Date with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes bear no restrictive legend thereon and shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially respective reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act within 180 days after the Issue Date and (iii) use their commercially respective reasonable best efforts to consummate complete the Exchange Offer within 180 240 days after the Issue Date. The Exchange Offer shall be deemed completed or consummated for purposes of this Agreement upon delivery by the Company to the Trustee under the Indenture of Exchange Notes in the same aggregate principal amount as the aggregate principal amount of Notes tendered (and not withdrawn) by Holders thereof pursuant to the Exchange Offer. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days 30 days (or longer if required by applicable lawlaw to complete the Exchange Offer) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates 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 (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and Notes, (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange NotesNotes and (vi) the Holder is not acting on behalf of any Persons who could not truthfully make the foregoing representations.
(b) The Company and the Initial Purchasers Purchaser acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers Purchaser also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 180 days after the date on which the Exchange Offer Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes, except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers that would impair their ability to so proceed and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. In the event that the Issuers are unable to consummate the Exchange Offer or the Private Exchange due to any event listed in clauses (i) through (iii) above, the Issuers shall not be deemed to have breached any covenant under this Section 2. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such other indenture shall provide that when a vote or consent of the Holders is required, the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 240 days of the Issue Date, (iii) any Holder (other than notifies the Initial Purchasers) Company that it is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers Purchaser so request requests with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Meritage Homes CORP)
Exchange Offer. (a) Unless The Issuers and the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers Guarantors shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) within 60 days after the Issue Date with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Transfer Restricted Securities that are Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their respective commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act within 180 days after the Issue Date, and (iii) use their commercially reasonable respective best efforts to consummate the Exchange Offer within 180 days 30 Business Days, or longer, if required by the federal securities laws, after the Issue Datedate on which the Exchange Offer Registration Statement is declared effective by the Commission. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company Issuers and the Guarantors will offer the Exchange Notes in exchange for surrender of the Notes. The Company Issuers and Guarantors shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company Issuers and the Guarantors in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer Act or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iviii) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and Notes, (viv) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange NotesNotes and (v) it has full power and authority to transfer the Notes in exchange for the Exchange Notes and that the Issuers and the Guarantors will acquire good and unencumbered title thereto free and clear of any liens, restrictions, charges or encumbrances and not subject to any adverse claims.
(b) The Company Issuers, the Guarantors and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuers, the Guarantors and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers and the Guarantors agree to use their respective commercially reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up not to 210 days exceed 90 Business Days after the date on which the Exchange Registration Statement Offer is declared effectiveconsummated, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company Issuers in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company Issuers and the Guarantors shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, the Initial Purchasers or any Holder Holder, as the case may be, holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company Issuers and the Guarantors upon the request of the Initial Purchasers or any such Holder Holder, as the case may be, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasers or any such Holder, as the case may be, in exchange (the “Private Exchange”) for such Notes held by the Initial Purchasers or any such Holder, as the case may be, a like principal amount of notes (the “Private Exchange Notes”) of the Company Issuers that are identical in all material respects to the Exchange NotesNotes except that the Private Exchange Notes may be subject to restrictions on transfer and bear a legend to such effect. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. For each Note surrendered in the Exchange Offer, the Holder will receive an Exchange Note having a principal amount equal to that of the surrendered Note. Interest on each Exchange Note and Private Exchange Note issued pursuant to the Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the Issue Date. Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuers and the Guarantors shall have no further registration obligations other than their continuing registration obligations with respect to (i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which clause (c)(iii) of this Section 2 applies. In connection with the Exchange Offer, the Company Issuers and the Guarantors shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company Issuers and the Guarantors shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn by the Holders pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each such Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes Transfer Restricted Securities of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers and the Guarantors to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers or the Guarantors and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) and the Guarantors deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Private Exchange Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matterclass.
(c) In the event that (i) any changes in the Issuers and the Guarantors are not required to file the Exchange Offer Registration Statement or permitted to consummate the Exchange Offer because the Exchange Offer is not permitted by applicable law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offerpolicy, (ii) for any reason the Exchange Offer is not consummated within 180 days of 30 Business Days after the 180th day following the Issue Date, or (iii) any Holder notifies the Issuers prior to the 20th day following consummation of the Exchange Offer that (other than the Initial Purchasersx) it is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (ivy) in that it may not resell the case of any Holder that participates Exchange Notes acquired by it in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely Offer to the status of public without delivering a prospectus and the prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such holder as resales, or (z) that it is a broker-dealer and owns Notes acquired directly from the Issuers or an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests Issuers (each such event referred to in clauses (i) through (viiii) of this sentence, a “Shelf Filing Event”), then the Issuers and the Guarantors shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless The Issuers shall (A) prepare and, on or prior to 180 days after the date of original issuance of the Notes (the "ISSUE DATE"), file with the SEC a Registration Statement under the Securities Act with respect to an offer by the Company to the holders of the Notes to issue and deliver to such holders, in exchange for Notes, a like principal amount of Exchange Notes (the "EXCHANGE OFFER"), (B) use their best efforts to cause the Registration Statement relating to the Exchange Offer would to be declared effective by the SEC under the Securities Act on or prior to 181 days after the Issue Date and (C) commence the Exchange Offer and use their best efforts to issue, on or prior to 210 days after the Issue Date, the Exchange Notes. The offer and sale of the Exchange Notes pursuant to the Exchange Offer shall be registered pursuant to the Securities Act on the appropriate form (the "EXCHANGE REGISTRATION STATEMENT") and duly registered or qualified under all applicable state securities or Blue Sky laws and will comply with all applicable tender offer rules and regulations under the Exchange Act and state securities or Blue Sky laws. The Exchange Offer shall not be subject to any condition, other than that the Exchange Offer does not violate any applicable law or any applicable interpretation of the staff of the CommissionSEC. Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuers shall have no further registration obligations other than with respect to (i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Private Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act Notes held by Participating Broker-Dealers and (iii) use their commercially reasonable efforts Notes or Exchange Notes as to consummate which Section 3(a)(iii) hereof applies. No securities shall be included in the Exchange Registration Statement other than the Exchange Notes.
(b) The Issuers may require each holder of Notes as a condition to its participation in the Exchange Offer within 180 days after to represent to the Issue Date. Upon Issuers and their counsel in writing (which may be contained in the Exchange Offer Registration Statement being declared effective by applicable letter of transmittal) that at the Commission, the Company will offer the Exchange Notes in exchange for surrender time of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice consummation of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it such holder will be acquired in the ordinary course of its business, (ii) it has such holder will have no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, and (iii) it such holder is not an affiliate (as defined in Rule 405 under the Securities Act) Affiliate of any Issuer oran Issuer, or if it is an affiliateAffiliate of an Issuer, it will comply with the registration and prospectus delivery requirements of the Securities Act Act, to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for the Notes that were acquired as a result of market-making or other trading activities, activities and that it will be required to acknowledge that it will deliver a prospectus Prospectus in connection with any re-sale resale of such Exchange Notes.
, (bv) such Holder will be able to trade the Exchange Notes acquired in the Exchange Offer without restriction under the Securities Act, and (vi) such Holder has full power and authority to transfer the Notes in exchange for the Exchange Notes and that the Company will acquire good and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claims. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Notes acquired by it and having, or that are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, or any other holder of Notes is not entitled to participate in the Exchange Offer, the Company, upon the request of such Initial Purchaser or any such holder if a Shelf Registration Statement with respect to Notes held by such person is not then in effect shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to such Initial Purchaser and any such holder, in exchange (the "PRIVATE EXCHANGE") for such Notes held by such Initial Purchaser and any such holder, a like principal amount of debt securities of the Company, guaranteed by each of the Guarantors on a senior subordinated basis, that are identical in all material respects to the Exchange Notes (the "PRIVATE EXCHANGE NOTES") (and that are issued pursuant to the same indenture as the Exchange Notes), except that the Private Exchange Notes may be subject to restrictions on transfer and bear a legend to such effect. The Company Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes. The Issuers and the Initial Purchasers acknowledge that the staff of the Commission SEC has taken the position that any broker-dealer that elects to exchange owns Exchange Notes that were acquired received by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker"PARTICIPATING BROKER-Dealer”DEALER") may be deemed to be an “"underwriter” " within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuers and the Initial Purchasers also acknowledge that it is the staff of the Commission has taken the SEC staff's position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating BrokerBro- ker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree (x) to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 180 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting each Participating Broker-Dealers Dealer shall have notified the Company in writing that such Requesting Participating Broker-Dealers have Dealer has resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan Offer (the "Applicable Period"), and (y) to comply with the provisions of distribution in such Section 5 of this Agreement, as they relate to the Exchange Offer and the Exchange Registration Statement that meets Statement. Interest on the requirements set forth Exchange Notes and the Private Exchange Notes will accrue from (A) the later of (i) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor and (ii) if the preceding paragraphNotes are surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date on such interest payment date or (B), if no interest has been paid on the Notes, from the Issue Date. If, prior to consummation of the In connection with each Exchange Offer, any Holder holds any Notes acquired by it that havethe Issuers shall:
(1) mail, or that are reasonably likely cause to be determined mailed, to have, the status each Holder of an unsold allotment in an initial distribution, or if any Holder is not record entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use their best efforts to keep the Exchange Offer open for not less than 20 business days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(34) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day business day on which the Exchange Offer shall remain open; and
(45) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the applicable Exchange Offer and the applicable Private Exchange, if any, the Company Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the applicable Exchange Offer and the applicable Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Registrable Notes so accepted for exchange; and
(3) exchange and cause the Trustee to authenticate and deliver promptly to each Holder of that validly tendered Notes and has not withdrawn such tender, Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes securities of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and whichthat, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the IndentureIndenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in such indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that If, (i) because of any changes change in law or the applicable in currently prevailing interpretations of the staff of the Commission do not permit SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 210 days of the Issue Date, (iii) any Holder (other than holder of any Private Exchange Notes so requests in writing to the Initial Purchasers) is prohibited by law or Issuers within 60 days after the applicable interpretations consummation of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder Holder as an affiliate of any Issuerthe Issuers within the meaning of the Securities Act), (v) then in the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status case of unsold allotments in an initial distribution or (vi) any Holder each of Private Exchange Notes so requests (each such event referred to in clauses (i) through to and including (viiv) of this sentenceparagraph, a “Shelf Filing Event”), then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the "SHELF NOTICE") and shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (General Automation Inc/Il)
Exchange Offer. (a) Unless the Exchange Offer would not be permitted by applicable laws or a policy of the Commission, the Company and the Guarantors shall use commercially reasonable efforts to (i) file an exchange offer registration statement on an appropriate registration form (the “Exchange Offer Registration Statement”) with the Commission with respect to a registered offer to exchange the Notes for Exchange Notes (the “Exchange Offer”) having identical terms in all material respects to the Notes (except that the Exchange Notes will not contain terms with respect to transfer restrictions or interest rate increases as described in the Indenture) and (ii) cause the Exchange Offer Registration Statement to be declared effective by the Commission under the Securities Act by the Effectiveness Target Date. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the Commission.
(b) The Exchange Notes shall be issued under, and entitled to the Issuers shall benefits of, (i) file the Indenture or a Registration Statement trust indenture that is identical to the Indenture (the “Exchange Offer Registration Statement”) other than such changes as are necessary to comply with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all requirements of the Registrable Notes for a like aggregate principal amount of notes Commission to effect or maintain the qualifications thereof under the TIA) and (including ii) the guarantees with respect thereto, the “Exchange Notes”Security Documents.
(c) that are identical in all material respects to the Notes (except that Interest on the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Private Exchange Notes will accrue from the last interest payment due date on which interest was paid on the Notes surrendered in exchange for surrender therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes. Each Exchange Note and Private Exchange Note shall bear interest at the rate set forth thereon.
(d) The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed will require each Holder as a condition to Holders. Each Holder that participates participation in the Exchange Offer will be required to represent to the Company in writing that (i) that any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it that at the time of the commencement and consummation of the Exchange Offer such Holder has no not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it that such Holder is not an affiliate “affiliate” (as defined in Rule 405 under of the Securities Act) of the Company or any Issuer Guarantor, or, if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act Act, to the extent applicableapplicable to it, and (iv) if such Holder is not acting on behalf of any Person who could not truthfully make the foregoing representations.
(e) The Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Offer Registration Statement a broker-dealer, it is not engaged in, and does not intend section entitled “Plan of Distribution” reasonably acceptable to engage in, the Initial Purchasers which shall contain a distribution summary statement of Exchange Notes and (v) if such Holder is a the positions taken or policies made by the staff of the Commission with respect to the potential “underwriter” status of any broker-dealer that will receive is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer activity (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of ), whether such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that positions or policies have been publicly disseminated by the staff of the Commission has taken or such positions or policies, in the position that if reasonable judgment of the Initial Purchasers based upon advice of counsel, represent the prevailing views of the staff of the Commission. Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the Commission, the use of the Prospectus contained in by all Persons subject to the Exchange Offer Registration Statement includes a plan prospectus delivery requirements of distribution containing the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and shall include a statement to describing the above effect and the means by manner in which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to The Company shall use their its commercially reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for a such period of up time as such Persons must comply with such requirements in order to 210 resell the Exchange Notes; provided that such period shall not exceed the lesser of 180 days after and the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant all persons subject to the penultimate paragraph prospectus delivery requirement of Section 5 hereof the Securities Act have sold all Exchange Notes held by them (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. .
(f) If, prior to upon consummation of the Exchange Offer, any Holder holds the Initial Purchasers hold any Notes acquired by it that have, or that are reasonably likely to be determined to have, them and having the status of an unsold allotment in an the initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company (upon the written request of any such Holder shall from the Initial Purchasers) shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holderthe Initial Purchasers, in exchange (the “Private Exchange”) for such the Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.Initial
Appears in 1 contract
Sources: Registration Rights Agreement (Thermadyne Holdings Corp /De)
Exchange Offer. (a) Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each Guarantor to) use its reasonable best efforts to: (i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) cause the Exchange Registration Statement to become effective by the Effectiveness Date, (iii) keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and issue on or prior to 30 Business Days after the Effectiveness Date, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the CommissionSEC.
(b) The Exchange Notes and the Private Exchange Notes shall be issued under, and entitled to the Issuers shall benefits of the Indenture or a trust indenture that is identical to the Indenture (other than such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualifications thereof under the TIA) which in either case will provide that (i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall will not contain terms with respect be subject to the transfer restrictions or Liquidated Damages upon a Registration Default)additional interest provisions set forth in the Indenture, (ii) use their commercially reasonable efforts the Private Exchange Notes will be subject to cause the Exchange Offer Registration Statement to be declared effective under transfer restrictions set forth in the Securities Act Indenture and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days Notes, the Private Exchange Notes and the Notes, if any, will be deemed one class of security (subject to the provisions of the Indenture) and entitled to participate in any Guarantee (as such terms are defined in the Indenture) on an equal and ratable basis.
(c) Interest on the Exchange Notes and Private Exchange Notes will accrue from (i) the later of (x) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or (y) if the Note is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (ii) if no interest has been paid on the Notes, from the Issue Date. Upon Each Exchange Note and Private Exchange Note shall bear interest at the Exchange Offer Registration Statement being declared effective rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. from time to time during such period.
(d) The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed may require each Holder as a condition to Holders. Each Holder that participates participation in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it such Holder will be acquired in the ordinary course of its business, (ii) it at the time of commencement and consummation of the Exchange Offer such Holder has not entered into any arrangement and has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it such Holder is not an affiliate (as defined in Rule 405 under of the Securities Act) of any Issuer or, Company or if it such Holder is an affiliate, it affiliate such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, a the distribution of Exchange the Notes and (v) if such Holder is a brokerParticipating Broker-dealer Dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, that it will deliver a prospectus Prospectus in connection with any re-sale resale of such the Exchange Notes.
(be) The Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers acknowledge that which shall contain a summary statement of the positions taken or policies made by the staff of the Commission has taken SEC with respect to the position that potential “underwriter” status of any broker-dealer that elects to is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by such broker-dealer for its own account it as a result of market-making activities or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within ), whether such positions or policies have been publicly disseminated by the meaning staff of the Securities Act SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and must deliver a regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus meeting the delivery requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from Act, including, to the original offering of the Notes). The Company extent so permitted, all Participating Broker-Dealers, and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing include a statement to describing the above effect and the means by manner in which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to The Company shall use their its reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for a such period of up time as such Persons must comply with such requirements in order to 210 days after the date on which resell the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof Notes (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. .
(f) If, prior to upon consummation of the Exchange Offer, any Holder the Initial Purchasers holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, and having the status of an unsold allotment in an the initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company (upon the written request of any such Holder shall from the Initial Purchasers) shall, simultaneously with the delivery of the Exchange Notes in pursuant to the Exchange Offer, issue and deliver to any such Holder, the Initial Purchasers in exchange (the “Private Exchange”) for such the Notes held by any such HolderInitial Purchasers, a like principal amount of notes that are identical to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes). The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. .
(g) In connection with the Exchange Offer, the Company shall:shall (and shall cause each Guarantor to):
(1i) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal (substantially in the form attached as an exhibit to the Exchange Registration Statement) and any related documents;
(2ii) keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice thereof is mailed to the Holders;
(iii) utilize the services of a depositary depository for the Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate thereof;
(3iv) permit Holders to withdraw tendered Registrable Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4v) otherwise comply in all material respects with all applicable laws, rules and regulations. .
(h) As soon as practicable after the close expiration of the Exchange Offer and or the Private Exchange, if anyas the case may be, the Company shall:shall (and shall cause each Guarantor to):
(1i) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and or the Private Exchange, as the case may be;
(2ii) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Registrable Notes so accepted for exchange; and
(3iii) cause the Trustee to authenticate and deliver promptly to each Holder of tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer exchange provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the Private Exchange account of such Holders in accordance with the Indenture shall not be subject to any conditions, other than that satisfy such authentication and delivery requirement.
(i) the Exchange Offer or Private ExchangeIf, as the case may be, does not violate applicable (i) any change in law or any in applicable interpretation of interpretations thereof by the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for SEC would not permit the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of 30 Business Days after the Issue Effectiveness Date, (iii) subsequent to the consummation of the Private Exchange, any Holder (other than the Initial Purchasers) is prohibited by law of Private Exchange Notes so requests, or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of (A) any Holder that participates not permitted to participate in the Exchange Offer, such (B) any Holder does not receive participating in the Exchange Offer that receives Exchange Notes on the date of the exchange that may not be sold or transferred without restriction under state and federal securities laws (other than due solely to the status of such holder Holder as an affiliate of the Company) or (C) any IssuerBroker-Dealer holds Notes acquired directly from the Company or one of its affiliates and, in each case contemplated by this clause (iv), (v) such Holder notifies the Initial Purchasers so request with respect to Notes that haveCompany within six months of consummation of the Exchange Offer, or that are reasonably likely to be determined to havethen, in each case, the status Company shall promptly (and in any event within five Business Days of unsold allotments in an initial distribution or such notification) deliver to the Holders and the Trustee notice thereof (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a the “Shelf Filing EventNotice”), then the Issuers ) and shall as promptly as practicable and at its sole expense thereafter use its reasonable best efforts to file a an Initial Shelf Registration Statement pursuant to Section 3 hereof3.
Appears in 1 contract
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers Company shall (i) file a Registration Statement (the “"Exchange Offer Registration Statement”") with the Commission on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes for a like aggregate principal amount at maturity of notes (including the guarantees with respect thereto, the “"Exchange Notes”") that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain restrictive legends, terms with respect to transfer restrictions or Liquidated Damages Additional Interest upon a Registration Default)) on or prior to 270 days after the Issue Date, (ii) use their commercially its reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or prior to 330 days after the Issue Date and (iii) use their commercially its reasonable best efforts to consummate the Exchange Offer within 180 370 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days 30 days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it acquired in the Exchange Offer will be acquired in the ordinary course of its businessbusiness of the person receiving such Exchange Notes, whether or not such recipient is such Holder itself, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (of the Company as defined in by Rule 405 under of the Securities Act) of any Issuer Act or, if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a comply with the applicable provision of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any re-sale resale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “"Participating Broker-Dealer”") may be deemed to be an “"underwriter” " within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the The Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) within 90 days following the Issue Date with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are substantially identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages Additional Interest upon a Registration Default)) and which represent the same continuing indebtedness as the Notes, (ii) use their commercially reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act within 180 days following the Issue Date and (iii) use their commercially reasonable best efforts to consummate the Exchange Offer within 180 days 30 Business Days after the Issue Dateeffective date of the Exchange Offer Registration Statement. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will Issuers shall offer the Exchange Notes in exchange for surrender of the Notes. The Company Issuers shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable lawlaw or otherwise extended by the Company, at its option) after the date notice of the Exchange Offer is mailed to Holders. Each The Issuers shall require each Holder that participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (of the Issuers, as defined in Rule by rule 405 under of the Securities Act) of any Issuer or, or if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and Notes, (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus Prospectus in connection with any re-sale resale of such Exchange Notes, (vi) such Holder has full power and authority to transfer the Notes in exchange for the Exchange Notes and (vii) the Company will acquire good and unencumbered title to the Exchange Notes free and clear of any liens, restrictions, charges or encumbrances and not subject to any adverse claims.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus Prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up not to 210 exceed 180 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company Issuers shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, the Initial Purchasers or any Holder Holder, as the case may be, holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company Issuers upon the request of the Initial Purchasers or any such Holder Holder, as the case may be, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasers or any such Holder, as the case may be, in exchange (the “Private Exchange”) for such Notes held by the Initial Purchasers or any such Holder, as the case may be, a like principal amount of notes (the “Private Exchange Notes”) of the Company Issuers that are identical in all material respects to the Exchange NotesNotes except that the Private Exchange Notes may be subject to restrictions on transfer and bear a legend to such effect. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuers shall have no further registration obligations other than the Issuers’ continuing registration obligations with respect to (i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which clause (c)(iii) of this Section 2 applies. In connection with the Exchange Offer, the Company Issuers shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough county of ManhattanNew York, The City the State of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company Issuers shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn by the Holders pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause instruct the Trustee to authenticate and deliver promptly to each such Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, an amount equal in principal amount to the Registrable Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or the Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or the Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions under the Securities Act set forth in the Indenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 210 days of following the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.,
Appears in 1 contract
Sources: Registration Rights Agreement (Euramax International PLC)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers shall (i) file a Registration Statement (the “"Exchange Offer Registration Statement”") with the Commission on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “"Exchange Notes”") that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain restrictive legends, terms with respect to transfer restrictions or Liquidated Damages Additional Interest upon a Registration Default), (ii) use their commercially reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable best efforts to consummate the Exchange Offer within 180 210 days after the Issue Date. Upon As soon as reasonably practicable upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company Issuers will offer the Exchange Notes in exchange for surrender of the Notes. The Company Issuers shall keep the Exchange Offer open for not less than 20 Business Days 30 days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company Issuers in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (of the Issuers as defined in by Rule 405 under of the Securities Act) of any Issuer or, or if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange Notes.
(b) The Company Issuers and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “"Participating Broker-Dealer”") may be deemed to be an “"underwriter” " within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuers and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Ashton Houston Residential L.L.C.)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange change Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (of the Issuer, as defined in Rule by rule 405 under of the Securities Act) of any Issuer or, or if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and Notes, (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange NotesNotes and, if requested in writing by the Company, will notify the Company in writing at such time as it has resold all of its Exchange Notes in the Exchange Offer and (vi) such Holder has full power and authority to transfer the Notes in exchange for the Exchange Notes and that the Company will acquire good and unencumbered title thereto free and clear of any liens, restrictions, charges or encumbrances and not subject to any adverse claims.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “"Participating Broker-Dealer”") may be deemed to be an “"underwriter” " within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “"Requesting Participating Broker-Dealer”"), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up not to 210 exceed 180 days after the date on which the Exchange Offer Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “"Applicable Period”"), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder Initial Purchaser or any Holder, as the case may be, holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company Company, upon the request of any such Holder Initial Purchaser or any such Holder, as the case may be, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Initial Purchaser or any such Holder, as the case may be, in exchange (the “"Private Exchange”") for such Notes held by any such Initial Purchaser or any such Holder, as the case may be, a like principal amount of notes (the “"Private Exchange Notes”") of the Company that are identical in all material respects to the Exchange NotesNotes except that the Private Exchange Notes may be subject to restrictions on transfer and bear a legend to such effect. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuers shall have no further registration obligations other than the Issuers' continuing registration obligations with respect to (i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes as to which clause (c)(iii) applies or Exchange Notes as to which clause (c)(iv) of this Section 2 applies. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn by the Holders pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each such Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Registrable Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any such existing action or proceeding with respect to the Issuers Company and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem Company reasonably deems necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (Holder, other than the an Initial Purchasers) Purchaser, is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that who participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder Holder as an affiliate of any Issuer), Issuer within the meaning of the Securities Act) or (v) the Initial Purchasers so request with respect to Notes or Private Exchange Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (viv) of this sentence, a “"Shelf Filing Event”"), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless The Company and the Exchange Offer would violate applicable law or any applicable interpretation of Subsidiary Guarantors agree to file with the staff of SEC as soon as practicable after the CommissionIssue Date, but in no event later than the Issuers shall (i) file a Registration Statement Filing Date, an offer to exchange (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of notes (including debt securities of the guarantees with respect thereto, the “Exchange Notes”) that Company which are identical in all material respects to the Notes (the "Exchange Notes") and which are entitled to the benefits of the Indenture (which shall be qualified under the TIA), except that the Exchange Notes shall not contain terms with respect have been registered pursuant to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer an effective Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notesshall contain no restrictive legend thereon. The Company shall and the Subsidiary Guarantors agree to use their reasonable best efforts to keep the Exchange Offer open for not less than at least 20 Business Days business days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to HoldersHolders and to consummate the Exchange Offer on or prior to the Consummation Date. The Exchange Offer will be registered under the Securities Act on the appropriate form (the "Exchange Registration Statement") and will comply with all applicable rules and regulations under the Exchange Act. Each Holder that who participates in the Exchange Offer will be required deemed to represent to the Company in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has that at the time of the consummation of the Exchange Offer such Holder will have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it and that such Holder is not an affiliate (as defined in Rule 405 under of the Company within the meaning of the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements . Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of that are Private Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account held by Participating Broker-Dealers, and neither the Company nor any Subsidiary Guarantor shall have any further obligation to register Registrable Securities (other than Private Exchange Notes and other than Exchange Notes as to which clause (c)(l)(i) hereof applies) pursuant to Section 3 of this Agreement. No securities other than the Exchange Notes shall be included in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such the Exchange NotesRegistration Statement.
(b) The Company and the Subsidiary Guarantors shall include within the Prospectus contained in the Exchange Registration Statement one or more section(s) reasonably acceptable to the Initial Purchasers acknowledge that the staff Purchasers, which shall contain a summary statement of the Commission has positions taken or policies made by the position that Staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that elects to exchange is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes that were acquired received by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “"Participating Broker-Dealer”) may be deemed to be an “underwriter” within "), whether such positions or policies have been publicly disseminated by the meaning Staff of the Securities Act and must deliver a SEC or such positions or policies, in the reasonable judgment of the Initial Purchasers, represent the prevailing views of the Staff of the SEC. Such section(s) shall also allow the use of the Prospectus by all persons subject to the prospectus meeting the delivery requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Act, including all Participating Broker-Dealers, and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing include a statement to the above effect and describing the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming . In the event that any Exchange Notes are received by any Participating Broker-Dealers or specifying and the amount of Exchange Notes owned Company is notified by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”)such event, the Issuers agree to Company and the Subsidiary Guarantors shall use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for a such period of up time as such persons must comply with such requirements in order to 210 resell the Exchange Notes, provided that such period shall not exceed 180 days after the date on which consummation of the Exchange Registration Statement is declared effective, Offer (or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof 5) (such period, the “"Applicable Period”"), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder an Initial Purchaser holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, and having the status of an unsold allotment in an the initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall Initial Purchaser shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any each such HolderInitial Purchaser, in exchange (the “"Private Exchange”") for such the Notes held by any such HolderInitial Purchaser, a like principal amount of notes (the “Private Exchange Notes”) debt securities of the Company that are identical in all material respects to the Exchange Notes. The Notes (the "Private Exchange Notes shall be Notes") (and which are issued pursuant to the same indenture as the Exchange Notes) except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes and shall bear the same CUSIP number as the Exchange Notes. In connection with Interest on the Exchange OfferNotes and Private Exchange Notes will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in Notes, from the Exchange Offer a copy Issue Date. The Indenture shall provide that the holders of any of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall will vote and consent together on all matters (to which such holders are entitled to vote or consent) as one class and that none of the holders of the Exchange Notes, Notes and the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any mattermatter (to which such holders are entitled to vote or consent).
(c) In If (1) prior to the event consummation of the Exchange Offer, the Company reasonably determines in good faith or Holders of at least a majority in aggregate principal amount of the Registrable Securities notify the Company that they have reasonably determined in good faith that (i) any changes in law or the applicable interpretations opinion of counsel, the Exchange Notes would not, upon receipt, be tradeable by such Holders who are not affiliates of the staff of Company without restriction under the Commission do not permit the Issuers to effect the Exchange Offer, Securities Act and without restrictions under applicable blue sky or state securities laws or (ii) for any reason in the opinion of counsel, the SEC is unlikely to permit the consummation of the Exchange Offer is not consummated within 180 days and/or (2) subsequent to the consummation of the Issue DatePrivate Exchange, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations holders of at least a majority in aggregate principal amount of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Private Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests and/or (each such event referred 3) the Exchange Offer is commenced and not consummated prior to the 45th day following the Consummation Date for any reason, then the Company shall promptly deliver to the Holders and the Trustee notice thereof (the "Shelf Notice") and shall thereafter file an Initial Shelf Registration as set forth in clauses Section 3 (i) through which in the circumstances contemplated by clause (vi2) of this sentence, a “Shelf Filing Event”), then sentence will relate solely to the Issuers shall file a Shelf Registration Statement Private Exchange Notes) pursuant to Section 3 hereof3. The parties hereto agree that, following the delivery of a Shelf Notice to the Holders of Registrable Securities, in the circumstances contemplated by clauses (1) and/or (3) of the preceding sentence, neither the Company nor any Subsidiary Guarantor shall have any further obligation to conduct the Exchange Offer or the Private Exchange under this Section 2.
Appears in 1 contract
Sources: Registration Rights Agreement (Prime Foods Development Corp)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the The Issuers shall (i) use their reasonable best efforts to file a Registration Statement (the “"Exchange Offer Registration Statement”") within 90 days after the Issue Date with the Commission on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “"Exchange Notes”") that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain restrictive legends, terms with respect to transfer restrictions or Liquidated Damages Additional Interest upon a Registration Default), (ii) use their commercially reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act within 180 days after the Issue Date and (iii) use their commercially reasonable best efforts to consummate the Exchange Offer within 180 210 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company Issuers will offer the Exchange Notes in exchange for surrender of the Notes. The Company Issuers shall keep the Exchange Offer open for not less than 20 Business Days days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company Issuers in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities ActAct , (iii) it is not an affiliate (of the Company or any Guarantor as defined in by Rule 405 under of the Securities Act) of any Issuer or, or if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange Notes.
(b) The Company Issuers and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “"Participating Broker-Dealer”") may be deemed to be an “"underwriter” " within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuers and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless To the Exchange Offer would violate extent not prohibited by any applicable law or any applicable interpretation of the staff of the Commission, the Issuers shall (i) file a Registration Statement (Company shall, for the “benefit of the Holders, at the Company's cost, use its best efforts to cause to be filed with the Commission an Exchange Offer Registration Statement”) with Statement on or prior to 90 days after the Commission Closing Date on an appropriate registration form with respect under the Act covering the offer by the Company to a registered offer (the “Exchange Offer”) Holders to exchange any and all of the Registrable Notes Securities (other than Private Exchange Notes) for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the such Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts by the Commission on or prior to consummate the Exchange Offer within 180 165 days after the Issue Closing Date. Upon the Exchange Offer , to cause such Registration Statement being declared to remain effective by until the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice closing of the Exchange Offer is mailed and to Holders. Each Holder that participates in cause the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement consummated on or understanding with any Person prior to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 45 days after the date on which the Exchange Offer Registration Statement is was declared effective, or such longer period if extended pursuant to effective under the penultimate paragraph Act by the Commission. The Exchange Notes will be issued under the Indenture. Upon the effectiveness of Section 5 hereof (such periodthe Exchange Offer Registration Statement, the “Applicable Period”)Company shall promptly commence the Exchange Offer, or it being the objective of such earlier date as all Requesting Exchange Offer to enable each Holder (other than Participating Broker-Dealers shall have notified (as defined in Section 3(t) hereof)) eligible and electing to exchange Registrable Securities for Exchange Notes (assuming that such Holder is not an affiliate of the Company within the meaning of Rule 405 under the Act, acquires the Exchange Notes in writing the ordinary course of such Holder's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of distributing the Exchange Notes) to transfer such Exchange Notes from and after their receipt without any limitations or restrictions under the Act or under state securities or blue sky laws. In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 30 days after the date notice thereof is mailed to the Holders, or longer if required by applicable law (such period being referred to herein as the "EXCHANGE PERIOD");
(iii) utilize the services of the Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York City time, on the last business day of the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Notes delivered for exchange, and a statement that such Requesting Holder is withdrawing its election to have such Notes exchanged;
(v) notify each Holder that any Note not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers have resold as provided herein); and
(vi) otherwise comply in all Exchange Notes acquired in respects with all applicable laws relating to the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder Initial Purchaser holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, and having the status of an unsold allotment in an the initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall Initial Purchaser shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, Initial Purchaser in exchange (the “Private Exchange”"PRIVATE EXCHANGE") for such Notes held by any such Holder, the Initial Purchasers a like principal amount of notes (the “Private Exchange Notes”) debt securities of the Company that are identical in all material respects (except that such securities shall bear appropriate transfer restrictions) to the Exchange Notes. The Private Exchange Notes shall be (the "PRIVATE EXCHANGE NOTES") and which are issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall which will provide that the Exchange Notes shall will not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide and that the Exchange Notes, the Private Exchange Notes and the Notes shall will vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.). The Private Exchange Notes shall be of the same series as and shall bear the same CUSIP number as the Exchange Notes. As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(c) In the event that (i) any changes accept for exchange all Notes or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Notes or portions thereof duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Notes or portions thereof so accepted for exchange by the Company, and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, a new Exchange Note or Private Exchange Note, as the case may be, equal in principal amount to the principal amount of the Notes surrendered by such Holder. To the extent not prohibited by applicable law or the any applicable interpretations interpretation of the staff of the Commission do Commission, the Company shall use its best efforts to complete the Exchange Offer as provided above, and shall comply with all applicable requirements of the Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not permit be subject to any condition, other than that (i) the Issuers Exchange Offer does not violate any applicable law or interpretation of the staff of the Commission, (ii) no action or proceeding has been instituted or threatened in any court or by or before any governmental agency with respect to effect the Exchange Offer which, in the reasonable judgment of the Company, might impair the ability of the Company to proceed with the Exchange Offer, (iiiii) for there has not been any reason material change, or development involving a prospective material change, in the business or financial affairs of the Company or any of its Subsidiaries which, in the reasonable judgment of the Company, would materially impair the Company's ability to consummate the Exchange Offer or have a material adverse effect on the Company if the Exchange Offer is consummated, (iv) there has not consummated within 180 days been proposed, adopted, or enacted any law, statute, rule or regulation which, in the reasonable judgment of the Issue DateCompany, might materially impair the ability of the Company to proceed with the Exchange Offer or have a material adverse effect on the Company if the Exchange Offer is consummated or (iiiv) all governmental approvals which the Company shall reasonably deem necessary for the consummation of the Exchange Offer as contemplated shall have been obtained. Each Holder of Registrable Securities who wishes to exchange such Registrable Securities for Exchange Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Company within the meaning of Rule 405 under the Act, that any Holder Exchange Notes to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it had no arrangement with any Person to participate in the distribution (within the meaning of the Act) of the Exchange Notes and will be required to make such other than representations as may be necessary under applicable Commission rules, regulations or interpretations to render available the use of Form S-4 or any other appropriate form under the Act. The Company shall inform the Initial Purchasers) is prohibited by law or , after consultation with the applicable interpretations Trustee and the Initial Purchasers, of the staff names and addresses of the Commission or Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise ineligible from participating facilitate the tender of Registrable Securities in the Exchange Offer, (iv) in . In the case of any Holder event that participates in the Company is unable to consummate the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than Offer due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to listed in clauses (i) through (viv) in the paragraph immediately above, the Company shall not be deemed to have breached any covenant under this Section 2(a). Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Notes and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Securities (other than Private Exchange Notes) pursuant to Section 2(b) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereofAgreement.
Appears in 1 contract
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation Each of the staff of the Commission, the Issuers shall (i) agrees to file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on no later than the Filing Date, an appropriate registration form with respect offer to a registered offer exchange (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including debt securities of the guarantees with respect thereto, the “Exchange Notes”) that Company which are identical in all material respects to the Notes (the “Exchange Notes”) (and which are entitled to the benefits of the Indenture (other than such changes to the Indenture as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA), except that the Exchange Notes shall not have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain terms no restrictive legend thereon. The Exchange Offer shall be registered under the Securities Act on the appropriate form (the “Exchange Registration Statement”) and shall comply with respect all applicable tender offer rules and regulations under the Exchange Act. Each of the Issuers agrees to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable its best efforts to (x) cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and on or before the Effectiveness Date; (iiiy) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 at least 30 Business Days (or longer if required by applicable law) after the later of the date notice of on which (i) the Exchange Offer is first mailed to HoldersPurchasers and (ii) the Exchange Registration Statement is declared effective by the Commission and launched; and (z) consummate the Exchange Offer on or prior to the 60th day following the date on which the Exchange Registration Statement is declared effective by the Commission. If after such Exchange Registration Statement is initially declared effective by the Commission, the Exchange Offer or the issuance of the Exchange Notes thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or any other governmental agency or court, such Exchange Registration Statement shall be deemed not to have become effective for purposes of this Agreement and the Company shall immediately provide notice to the Trustee that the Exchange Registration Statement is no longer effective. Each Holder that who participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has that at the time of the consummation of the Exchange Offer such Holder will have no arrangement or understanding with any Person to participate in the distribution (of the Exchange Notes, that such Holder is not an affiliate of any Issuer within the meaning of the Securities Act) , and any additional representations that in the written opinion of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act counsel to the extent applicable, (iv) if such Holder is not a brokerIssuers are necessary under then-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff existing interpretations of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer in order for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is to be declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to Upon consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to haveOffer in accordance with this Section 2, the status of an unsold allotment Issuers shall have no further obligation to register Registrable Notes other than in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request respect of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver as to any such Holder, in exchange (the “Private Exchange”which clause 2(b)(iii) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Noteshereof applies. In connection with the Exchange Offer, the Company Issuers shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate thereof;
(3) permit Holders to withdraw tendered Registrable Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if anyOffer, the Company Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private ExchangeOffer;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange tendering such Registrable Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case Notes may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (Indenture, which in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall event will provide that the Exchange Notes shall will not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide and that the Exchange Notes, the Private Exchange Notes and the Notes shall Notes, if any, will vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes Notes, if any, will have the right to vote or consent as a separate class on any matter.
(cb) In the event that If, (i) because of any changes change in law or the applicable in currently prevailing interpretations of the staff of the Commission do Commission, the Company is not permit the Issuers permitted to effect the an Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 255 days of the Issue Date, or (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange OfferOffer (and validly tenders and does not withdraw its Registrable Notes prior to the expiration thereof), such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder Holder as an affiliate of any IssuerIssuer within the meaning of the Securities Act) and so notifies the Company within 30 days following the consummation of the Exchange Offer (and provides a reasonable basis for its conclusions), (v) in the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status case of unsold allotments in an initial distribution or (vi) any Holder each of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”i)-(iii), then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration Statement pursuant to Section 3 hereof3.
Appears in 1 contract
Sources: Registration Rights Agreement (Jacobs Entertainment Inc)
Exchange Offer. (a) Unless To the Exchange Offer would violate extent not prohibited by any applicable law or any applicable interpretation of the staff of the CommissionSEC, the Issuers shall (iA) prepare and, on or prior to 60 days after the date of original issuance of the Notes (the "ISSUE DATE"), file with the SEC a Registration Statement (under the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form Securities Act with respect to a registered an offer (by the “Exchange Offer”) Company to exchange any and all the holders of the Registrable Notes to issue and deliver to such holders, in exchange for Notes, a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (iiB) use their commercially reasonable best efforts to cause the Registration Statement relating to the Exchange Offer Registration Statement to be declared effective by the SEC under the Securities Act and (iii) use their commercially reasonable efforts on or prior to consummate the Exchange Offer within 180 120 days after the Issue Date. Upon , and (C) commence the Exchange Offer Registration Statement being declared effective by and use their best efforts to issue, on or prior to the CommissionConsummation Date, the Company will Exchange Notes. The offer and sale of the Exchange Notes in exchange for surrender of the Notes. The Company shall keep pursuant to the Exchange Offer open for shall be registered pursuant to the Securities Act on the appropriate form (the "EXCHANGE REGISTRATION STATEMENT") and duly registered or qualified under all applicable state securities or Blue Sky laws and will comply with all applicable tender offer rules and regulations under the Exchange Act and state securities or Blue Sky laws. The Exchange Offer shall not less be subject to any condition, other than 20 Business Days (that the Exchange Offer does not violate any applicable law or longer if required by applicable law) after interpretation of the date notice staff of the SEC. Upon consummation of the Exchange Offer is mailed in accordance with this Section 2, the Issuers shall have no further registration obligations other than with respect to Holders(i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which Section 3(a)(iii) hereof applies. Each Holder that participates No securities shall be included in the Exchange Registration Statement other than the Exchange Notes.
(b) The Issuers may require each holder of Notes as a condition to its participation in the Exchange Offer will be required to represent to the Company Issuers and their counsel in writing (which may be contained in the applicable letter of transmittal) that at the time of the consummation of the Exchange Offer (i) any Exchange Notes to be received by it such holder will be acquired in the ordinary course of its business, (ii) it has such holder will have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, and (iii) it such holder is not an affiliate (as defined in Rule 405 under the Securities Act) Affiliate of any Issuer oran Issuer, or if it is an affiliateAffiliate of an Issuer, it will comply with the registration and prospectus delivery requirements of the Securities Act Act, to the extent applicable.
(c) If, (iv) if such Holder prior to consummation of the Exchange Offer, any of the Initial Purchasers holds any Notes acquired by it and having, or which are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, or any other holder of Notes is not a broker-dealerentitled to participate in the Exchange Offer, it is not engaged inthe Company upon the request of such Initial Purchaser or any such holder shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and does not intend deliver to engage insuch Initial Purchaser and any such holder, in exchange (the "PRIVATE EXCHANGE") for such Notes held by such Initial Purchaser and any such holder, a distribution like principal amount of debt securities of the Company, guaranteed by the Parent Guarantor on a senior basis, that are identical in all material respects to the Exchange Notes (the "PRIVATE EXCHANGE NOTES") (and (v) if such Holder is a broker-dealer that will receive which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes for its own account in exchange for Notes that were acquired shall bear the same CUSIP number as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such the Exchange Notes.
(bd) Unless the Exchange Offer would not be permitted by any applicable law or interpretation of the staff of the SEC, the Company shall mail the Exchange Offer Prospectus and appropriate accompanying documents, including appropriate letters of transmittal, to each holder of Notes providing, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Notes validly tendered will be accepted for exchange;
(ii) the date of acceptance for exchange (the "EXCHANGE DATE"), which date shall in no event be later than the Consummation Date (unless otherwise required by applicable law);
(iii) that holders of Notes electing to have a Note exchanged pursuant to the Exchange Offer will be required to surrender such Note, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the Exchange Date; and
(iv) that holders of Notes that do not tender all such securities pursuant to the Exchange Offer may no longer have any registration rights hereunder with respect to Notes not tendered. Promptly after the Exchange Date, the Company shall:
(i) accept for exchange all Notes or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer or the Private Exchange; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Notes or portions thereof so accepted for exchange by the Company, and issue, cause the Trustee under the Indenture (or the indenture pursuant to which the Exchange Notes are issued) to authenticate, and mail to each holder of Notes, Exchange Notes equal in principal amount to the principal amount of the Notes surrendered by such holder.
(e) The Company Issuers and the Initial Purchasers acknowledge that the staff of the Commission SEC has taken the position that any broker-dealer that elects to exchange owns Exchange Notes that were acquired received by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker"PARTICIPATING BROKER-Dealer”DEALER") may be deemed to be an “"underwriter” " within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuers and the Initial Purchasers also acknowledge that it is the staff of the Commission has taken the SEC staff's position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree (x) to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), 6 months or such earlier date as all Requesting each Participating Broker-Dealers Dealer shall have notified the Company in writing that such Requesting Participating Broker-Dealers have Dealer has resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior (y) to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously comply with the delivery provisions of the Exchange Notes in the Exchange OfferSection 5 of this Agreement, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant they relate to the Exchange Offer and the Private Exchange;Exchange Registration Statement, and (z) to deliver to such Participating Broker-Dealer a "cold comfort" letter of the independent public accountants of the Issuers and a legal opinion as to matters reasonably requested by such Participating Broker-Dealer relating to the Exchange Registration Statement and the related Prospectus and any amendments or supplements thereto.
(2f) deliver or cause The Initial Purchasers shall have no liability to be delivered any Participating Broker-Dealer with respect to the Trustee for cancellation in accordance with any request made pursuant to Section 5(t) all Notes so accepted for exchange; and2(e).
(3g) cause Interest on the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditionsNotes will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, other than that (i) if no interest has been paid on the Exchange Offer or Private ExchangeNotes, as from the case may be, does not violate applicable law or any applicable interpretation date of the staff original issuance of the Commission, Notes.
(iih) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall may be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (Indenture, which in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and event shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of neither the Exchange Notes, the Private Exchange Notes or nor the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (International Comfort Products Corp)
Exchange Offer. (a) Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each Guarantor to) use commercially reasonable efforts to (i) prepare and file with the SEC a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, and (ii) issue on or prior to 365 days after the Closing Date (or, if such date is not a Business Day, on the next succeeding Business Day) (the “Exchange Offer Deadline”), Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the CommissionSEC.
(b) The Exchange Notes shall be issued under, and entitled to the Issuers shall benefits of, (i) file the Indenture or a Registration Statement trust indenture that is identical to the Indenture (the “Exchange Offer Registration Statement”) other than such changes as are necessary to comply with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all requirements of the Registrable Notes for a like aggregate principal amount of notes SEC to effect or maintain the qualifications thereof under the TIA) and (including ii) the guarantees with respect thereto, the “Exchange Notes”Collateral Documents.
(c) that are identical in all material respects to the Notes (except that Interest on the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Private Exchange Notes will accrue from the last interest payment due date on which interest was paid on the Notes surrendered in exchange for surrender therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes. Each Exchange Note and Private Exchange Note shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(d) The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed may require each Holder as a condition to Holders. Each Holder that participates participation in the Exchange Offer will be required to represent to the Company in writing that (i) that any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it that at the time of the commencement and consummation of the Exchange Offer such Holder has no not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it that if such Holder is not an affiliate (as defined in “affiliate” of the Company within the meaning of Rule 405 under of the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicableapplicable to it, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, a the distribution of Exchange the Notes and (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that will receive is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer activity (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within ), whether such positions or policies have been publicly disseminated by the meaning staff of the Securities Act SEC or such positions or policies, in the reasonable judgment of the Initial Purchasers, represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and must deliver a regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus meeting the delivery requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from Act, including, to the original offering of the Notes). The Company extent so permitted, all Participating Broker-Dealers, and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing include a statement to describing the above effect and the means by manner in which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to The Company shall use their its commercially reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for a period of up to 210 days after time commencing on the date on which day the Exchange Registration Statement Offer is declared effective, consummated and continuing for 90 days (or such longer shorter period if extended pursuant during which such Persons are required by law to comply with such requirements in order to resell the penultimate paragraph of Section 5 hereof Exchange Notes) (such period, the “Applicable Period”); provided, or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing however, that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. period may be extended pursuant to Section 7(v).
(f) If, prior to upon consummation of the Exchange Offer, any Holder holds of the Initial Purchasers hold any Notes acquired by it that have, or that are reasonably likely to be determined to have, them and having the status of an unsold allotment in an the initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company (upon the written request of any from such Holder shall Initial Purchaser) shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such HolderInitial Purchaser, in exchange (the “Private Exchange”) for such the Notes held by any such HolderInitial Purchaser, a like principal amount of notes Senior Secured Notes that are identical to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (the “Private Exchange Notes”) of the Company that (and which are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes). The Company shall use its commercially reasonable efforts to cause the Private Exchange Notes and to bear the same CUSIP number as the Exchange Notes. .
(g) In connection with the Exchange Offer, the Company shall:
(1i) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal that is an exhibit to the Exchange Registration Statement, and any related documents;
(2ii) keep the Exchange Offer open for not less than 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law)
(iii) utilize the services of a depositary depository for the Exchange Offer with an address in the Borough of Manhattan, The the City of New York, which may be the Trustee or an affiliate thereof;
(3iv) permit Holders to withdraw tendered Registrable Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4v) otherwise comply in all material respects with all applicable laws, rules and regulations. .
(h) As soon as practicable after the close of the Exchange Offer and or the Private Exchange, if anyas the case may be, the Company shall:
(1i) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and or the Private Exchange, as the case may be, and not validly withdrawn;
(2ii) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Registrable Notes so accepted for exchange; and;
(3iii) cause the Trustee to authenticate and deliver promptly to each Holder of tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The ; and
(iv) cause the Guarantors to guarantee the Exchange Offer and the Notes or Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private ExchangeNotes, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, .
(iii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall may be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with other than such changes as are necessary to comply with any requirements of the Commission SEC to effect or maintain the qualification thereof under the TIA) and which), which in either case, has been qualified under the TIA and shall event will provide that the Exchange Notes shall will not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide , that the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as Notes, if any, will be deemed one class and that none of security (subject to the provisions of the Exchange Notes, Indenture) and entitled to participate in all the Private Exchange Notes or security granted by the Notes will have Company pursuant to the right to vote or consent as a separate class Collateral Documents and in any Guarantee on any matteran equal and ratable basis.
(cj) In the event that If (i) any changes in law or the Company and the Guarantors are not required to file the Exchange Registration Statement; (ii) applicable interpretations of the staff of the Commission do SEC would not permit the Issuers to effect consummation of the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, ; or (iii) any Holder of Registrable Notes notifies the Company within 30 days following consummation of the Exchange Offer that:
(other than the Initial Purchasersa) it is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible SEC policy from participating in the Exchange Offer, ;
(ivb) in it may not resell the case of any Holder that participates Exchange Notes and related Guarantees acquired by it in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely Offer to the status public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not appropriate or available for such resales; or
(c) it is a broker-dealer and owns Notes acquired directly from the Company or any of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”)its affiliates, then the Issuers Company shall promptly (and in any event within five Business Days) deliver to the Holders and the Trustee notice thereof (the “Shelf Notice”) and shall file a Shelf Registration Statement pursuant to Section 3 hereof4.
Appears in 1 contract
Exchange Offer. (a) Unless To the Exchange Offer would violate extent not prohibited by any applicable law or any applicable interpretation of the staff of the CommissionSEC, the Issuers shall (iA) prepare and, on or prior to 45 days (the "Filing Date") after the date of original issuance of the Notes (the "Issue Date"), file with the SEC a Registration Statement (under the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form Securities Act with respect to a registered an offer (by the “Exchange Offer”) Company to exchange any and all the holders of the Registrable Notes to issue and deliver to such holders, in exchange for Notes, a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (iiB) use their commercially reasonable best efforts to cause the Registration Statement relating to the Exchange Offer Registration Statement to be declared effective by the -6- SEC under the Securities Act and (iii) use their commercially reasonable efforts on or prior to consummate the Exchange Offer within 180 135 days after the Issue Date. Upon , and (C) commence the Exchange Offer Registration Statement being declared effective by and use their best efforts to issue, on or prior to the CommissionConsummation Date, the Company will Exchange Notes. The offer and sale of the Exchange Notes in exchange for surrender of the Notes. The Company shall keep pursuant to the Exchange Offer open for shall be registered pursuant to the Securities Act on an appropriate form (the "Exchange Registration Statement") and duly registered or qualified under all applicable state securities or Blue Sky laws and will comply with all applicable tender offer rules and regulations under the Exchange Act and state securities or Blue Sky laws. The Exchange Offer shall not less be subject to any condition, other than 20 Business Days (that the Exchange Offer does not violate any applicable law or longer if required by applicable law) after interpretation of the date notice staff of the SEC. Upon consummation of the Exchange Offer is mailed in accordance with this Section 2, the Issuers shall have no further registration obligations other than with respect to Holders(i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which Section 3(a)(iii) hereof applies. Each Holder that participates No securities shall be included in the Exchange Offer will be required Registration Statement other than the Exchange Notes.
(b) The Issuers may require each holder of Notes, as a condition to its participation in the Exchange Offer, to represent to the Company Issuers and their counsel in writing (which may be contained in the applicable letter of transmittal) that at the time of the consummation of the Exchange Offer (i) any Exchange Notes to be received by it such holder will be acquired in the ordinary course of its business, (ii) it has such holder will have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, and (iii) it such holder is not an affiliate (as defined in Rule 405 under the Securities Act) Affiliate of any Issuer oran Issuer, or if it is an affiliateAffiliate of an Issuer, it will comply with the registration and prospectus delivery requirements of the Securities Act Act, to the extent applicable.
(c) If, (iv) if such Holder prior to consummation of the Exchange Offer, the Initial Purchaser holds any Notes acquired by it and having, or which are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, or any other holder of Notes is not a broker-dealerentitled to participate in the Exchange Offer, it is not engaged inthe Company, upon the request of the Initial Purchaser or any such holder, shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and does not intend deliver to engage inthe Initial Purchaser and any such holder, in exchange (the "Private Exchange") for such Notes held by such Initial Purchaser and any such holder, a distribution like principal amount of debt securities of the Company, guaranteed by each of the Subsidiary Guarantors on a senior basis, that are identical in all material respects to the Exchange Notes (the "Private Exchange Notes") (and (v) if such Holder is a broker-dealer that will receive which are issued pursuant to the same indenture as the -7- Exchange Notes). The Private Exchange Notes for its own account in exchange for Notes that were acquired shall bear the same CUSIP number as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such the Exchange Notes.
(bd) Unless the Exchange Offer would not be permitted by any applicable law or interpretation of the staff of the SEC, the Company shall mail the Exchange Offer Prospectus and appropriate accompanying documents, including appropriate letters of transmittal, to each holder of Notes providing, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Notes validly tendered will be accepted for exchange;
(ii) the date of acceptance for exchange (the "Exchange Date"), which date shall in no event be later than the Consummation Date (unless otherwise required by applicable law);
(iii) that a holder of a Note electing to have a Note exchanged pursuant to the Exchange Offer will be required to surrender such Note, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the Exchange Date; and
(iv) that holders of Notes that do not tender all such securities pursuant to the Exchange Offer may no longer have any registration rights hereunder with respect to Notes not tendered. Promptly after the Exchange Date, the Company shall:
(i) accept for exchange all Notes or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Notes or portions thereof so accepted for exchange by the Company, and issue, cause the Trustee under the Indenture (or the indenture pursuant to which the Exchange Notes are issued) to authenticate, and mail to each holder of Notes, Exchange Notes equal in principal amount to the principal amount of the Notes surrendered by such holder.
(e) The Company Issuers and the Initial Purchasers Purchaser acknowledge that the staff of the Commission SEC has taken the position that any broker-dealer that elects to exchange owns Exchange Notes that were acquired received by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “-8- "Participating Broker-Dealer”") may be deemed to be an “"underwriter” " within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuers and the Initial Purchasers Purchaser also acknowledge that it is the staff of the Commission has taken the SEC staff's position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree (x) to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days six months after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), Consummation Date or such earlier date as all Requesting each Participating Broker-Dealers Dealer shall have notified the Company in writing that such Requesting Participating Broker-Dealers have Dealer has resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior (y) to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously comply with the delivery provisions of the Exchange Notes in the Exchange OfferSection 5 of this Agreement, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant they relate to the Exchange Offer and the Private Exchange;Exchange Registration Statement, and (z) to deliver to such Participating Broker-Dealer a "cold comfort" letter of the independent public accountants of the Issuers and a legal opinion as to matters reasonably requested by such Participating Broker-Dealer relating to the Exchange Registration Statement and the related Prospectus and any amendments or supplements thereto.
(2f) deliver or cause The Initial Purchaser shall have no liability to be delivered any Participating Broker-Dealer with respect to the Trustee for cancellation in accordance with any request made pursuant to Section 5(t) all Notes so accepted for exchange; and2(e).
(3g) cause Interest on the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditionsNotes will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, other than that (i) if no interest has been paid on the Exchange Offer or Private ExchangeNotes, as from the case may be, does not violate applicable law or any applicable interpretation date of the staff original issuance of the Commission, Notes.
(iih) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall may be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (Indenture, which in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and event shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. -9- The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of neither the Exchange Notes, the Private Exchange Notes or nor the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. If on the 366th day following the Issue Date of the Notes, such Notes are not Freely Tradable without a restrictive legend as a result of (i) Intelsat, Ltd. failing to timely file reports pursuant to the Exchange Act (as required by Rule 144(c)(1) and (2) of the Securities Act), (ii) an affiliate of the Notes Issuer enters the chain of ownership of the Notes, or (iii) a change in law, regulation or interpretation by the SEC or DTC, the result of which would prohibit the removal of the restrictive legend on or prior to the 365th day following the Issue Date for the Notes, then with respect to such Notes:
(a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the CommissionSEC, the Issuers Notes Issuer shall use its commercially reasonable efforts to file with the SEC (iwithin such time as to comply with the requirements of the last sentence of this paragraph) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes debt securities of the Notes Issuer (including the guarantees with respect thereto, the “Exchange Notes”) ), that are identical in all material respects to the Notes (Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon, (ii) subject to compliance herewith, the Exchange Notes shall not contain terms be subject to any increase in annual interest rate as set forth in Section 4(a) hereof and (iii) interest thereon shall accrue from the last date on which interest was paid on the Notes or, if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with respect to transfer restrictions or Liquidated Damages upon a Registration Default)the TIA) and which, in either case, has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Notes Issuer shall (iix) use their its commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and Act; (iiiy) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than at least 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) use its commercially reasonable efforts to consummate the Exchange Offer within 365 days of the one-year anniversary of the Issue Date of the Notes (or if such 365th day is not a Business Day, the next succeeding Business Day); provided, however, that the Notes Issuer shall not be required to consummate such Exchange Offer if all the Notes are Freely Tradable. Each Holder that (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Company Notes Issuer in writing that (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes to be received by it will be acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of its businessbusiness of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) it at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has no an arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, ; (iii) it neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is not an affiliate “affiliate” (as defined in Rule 405 under the Securities Act405) of any Issuer or, if it is an affiliateaffiliate of any Issuer, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have its Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) if neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is not a broker-dealer, it is not engaged in, and does not intend engaging in or intends to engage in, in a distribution of the Exchange Notes; (v) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is prohibited by any law or policy of the SEC from participating in the Exchange Offer; and (vvi) if such Holder is a brokerParticipating Broker-dealer that will receive Exchange Dealer, such Holder has acquired the Registrable Notes for its own account in exchange for Notes that were acquired as a result of market-making activities or other trading activities, activities and that it will deliver a comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder). Upon consummation of the Exchange Offer in connection accordance with any re-sale this Section 2, the provisions of such this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers; provided, however, that the Notes Issuer shall have no further obligation to register Registrable Notes, or file any Registration Statement in respect thereof, (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to this Agreement. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement.
(b) The Company and Notes Issuer shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” reasonably acceptable to the Initial Purchasers acknowledge that Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the Commission has taken SEC with respect to the position that potential “underwriter” status of any broker-dealer that elects to exchange is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes that were acquired received by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within ), whether such positions or policies have been publicly disseminated by the meaning staff of the Securities Act SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and must deliver a regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus meeting the delivery requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from Act, including, to the original offering extent permitted by applicable policies and regulations of the Notes). The Company SEC, all Participating Broker-Dealers, and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing include a statement to the above effect and describing the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection compliance with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to The Notes Issuer shall use their its commercially reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for a such period of up time as is necessary to 210 days after the date on which comply with applicable law in connection with any resale of the Exchange Registration Statement is declared effectiveNotes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the an Exchange Offer, any Holder holds the Initial Purchasers hold any Notes acquired by it that have, or that are reasonably likely to be determined to have, have the status of an unsold allotment in an the initial distribution, or if any Holder is not entitled to participate in the Exchange OfferNotes Issuer, the Company upon the request of any such Holder the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holderthe Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company Notes Issuer, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange NotesNotes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Company Notes Issuer shall:
(1) mail mail, or cause to be mailed mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use its commercially reasonable efforts to keep the Exchange Offer open for not less than 20 Business Days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(34) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain remains open; and
(45) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company Notes Issuer shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, a principal amount of Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem deems necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture indentures identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has have been qualified under the TIA or are exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture indentures shall provide that the Exchange Notes, the Private Exchange Notes and the Notes outstanding shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes outstanding will have the right to vote or consent as a separate class on any matter.
(c) In the event that If, (i) because of any changes change in law or the applicable in currently prevailing interpretations of the staff of the Commission do SEC, any Issuer determines upon advice of its outside counsel that it is not permit the Issuers permitted to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 365 days of the one-year anniversary of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law Purchasers or any other holder of Private Exchange Notes so requests in writing to the applicable interpretations Notes Issuer at any time after the consummation of the staff of the Commission Exchange Offer or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under U.S. state and federal securities laws (other than due solely to the status of such holder Holder as an affiliate of any Issuer)Issuer within the meaning of the Securities Act and other than any Participating Broker-Dealer by virtue of any prospectus delivery requirement) and so notifies the Notes Issuer prior to the 20th Business Day following consummation of the Exchange Offer of such restrictions, (v) in the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status case of unsold allotments in an initial distribution or (vi) any Holder each of Private Exchange Notes so requests (each such event referred to in clauses (i) through to and including (viiv) of this sentence, a then the Notes Issuer shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Filing EventNotice”), then ) and the Issuers Notes Issuer shall file a Shelf Registration Statement pursuant to Section 3 hereof; provided, however, that no Holder (other than an Initial Purchaser) shall be entitled to have the Notes held by it covered by such Shelf Registration unless such Holder agrees in writing to be bound by all of the provisions of this Agreement applicable to such Holder.
Appears in 1 contract
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the The Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”"EXCHANGE OFFER REGISTRATION STATEMENT") within 90 days after the Issue Date with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”"EXCHANGE OFFER") to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”"EXCHANGE NOTES") that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially respective reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act within 150 days after the Issue Date and (iii) use their commercially reasonable best efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker"PARTICIPATING BROKER-Dealer”DEALER") may be deemed to be an “"underwriter” " within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker"REQUESTING PARTICIPATING BROKER-Dealer”DEALER"), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 180 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof (such period, the “Applicable Period”"APPLICABLE PERIOD"), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”"PRIVATE EXCHANGE") for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”"PRIVATE EXCHANGE NOTES") of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the an Initial PurchasersPurchaser) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”"SHELF FILING EVENT"), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Beazer Homes Usa Inc)
Exchange Offer. (a) Unless The Company shall file with the Exchange Offer would violate applicable law or any applicable interpretation of SEC, no later than the staff of the CommissionFiling Date, the Issuers shall (i) file a Registration Statement (the “"Exchange Offer Registration Statement”") with the Commission on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including of the guarantees with respect thereto, the “Exchange Notes”) Company that are identical in all material respects to the Notes (Notes, except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Defaultno restrictive legend thereon (the "Exchange Notes"), and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, has been qualified under the TIA. Interest on each Exchange Note will accrue (A) from the later of (i) the last interest payment date on which interest was paid on the Note surrendered in exchange therefor or (ii) if the Note is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of the Exchange Offer and as to which interest will be paid, the date of such interest payment date or (B) if no interest has been paid on the Notes, from the Issue Date. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable law (provided, however, that the Company shall not be obligated to file in any jurisdiction in which it is not qualified or take any action that would subject it to general service of process or taxation in any jurisdiction where it is not so subject). The Company shall use their commercially reasonable its best efforts to (x) cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and on or before the Effectiveness Date; (iiiy) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 150th day following the date on which the Exchange Offer Registration Statement is declared effective by the SEC. Each Holder that participates in the Exchange Offer will be required required, as a condition to its participation in the Exchange Offer, to represent to the Company in writing (which may be contained in the applicable letter of transmittal) that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has 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 (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it that such Holder is not an affiliate (as defined in Rule 405 under of the Company within the meaning of the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) that if such Holder holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, a the distribution of Exchange Notes Notes, and (v) that if such Holder is a broker-dealer (a "Participating Broker-Dealer") that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, that it will deliver a prospectus in connection with any re-sale resale of such Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers (as defined), and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and other than in respect of any Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement; provided, that the Company may include in the Exchange Offer Registration Statement additional notes issued pursuant to the Indenture.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” shall include within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan section entitled "Plan of distribution containing Distribution," reasonably acceptable to the Holders, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such "Plan of Distribution" section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement to the above effect and describing the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection compliance with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to The Company shall use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for a such period of up time as is necessary to 210 comply with applicable law in connection with any resale of the Exchange Notes covered thereby; provided, however, that such period shall not exceed 60 days after the date on which the such Exchange Offer Registration Statement is declared effective, effective (or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof hereof) (such period, the “"Applicable Period”"), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “"Private Exchange”") for such Notes held by any such Holder, a like principal amount of notes (the “"Private Exchange Notes”") of the Company that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and and, if possible, bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail mail, or cause to be mailed mailed, to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(34) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day business day on which the Exchange Offer shall remain open; and
(45) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the CommissionSEC, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers Company and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) Company deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that If, (i) because of any changes change in law or the applicable in currently prevailing interpretations of the staff of the Commission do SEC, the Company is not permit the Issuers permitted to effect the an Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 150 days of the Issue Date, (iii) any Holder (other than holder of Private Exchange Notes so requests in writing to the Initial Purchasers) is prohibited by law or Company within 60 days after the applicable interpretations consummation of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder Holder as an affiliate of any Issuerthe Company within the meaning of the Securities Act), (v) then in the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status case of unsold allotments in an initial distribution or (vi) any Holder each of Private Exchange Notes so requests (each such event referred to in clauses (i) through to and including (viiv) of this sentence, a “the Company shall promptly deliver to the Holders and the Trustee written notice thereof (the "Shelf Filing Event”), then the Issuers Notice") and shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless To the Exchange Offer would violate extent not prohibited by any applicable law or any applicable interpretation of the staff of the Commission, the Issuers Issuer shall (i) file within 90 days of the Issue Date a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), ) and (ii) use their commercially its reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer Issuer will: (i) use its reasonable best efforts to commence the Exchange Notes in exchange for surrender of Offer as soon as practicable after the Notes. The Company shall Exchange Offer Registration Statement is declared effective, (ii) use its reasonable best efforts to keep the Exchange Offer open for not less than 20 Business Days 30 days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders, and (iii) consummate the Exchange Offer within 40 days after the date on which the Exchange Offer Registration Statement is declared effective. Each Holder that participates in the Exchange Offer will be required to represent to the Company Issuer in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer Act or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iviii) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and Notes, (viv) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus comply with the applicable provisions of the Securities Act in connection with any re-sale resale of such Exchange Notes, (v) such Holder has full power and authority to transfer the Notes in exchange for the Exchange Notes and that the Issuer will acquire good and unencumbered title thereto free and clear of any liens, restrictions, charges or encumbrances and not subject to any adverse claims; and (vi) such Holder is not an “affiliate” (as defined in Rule 405 promulgated under the Securities Act) of the Issuer.
(b) The Company Issuer and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Regulation S Notes). The Company Issuer and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree Issuer agrees to use their its reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up not to 210 exceed 120 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company Issuer in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company Issuer shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate For each Note surrendered in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery will receive an Exchange Note having a principal amount equal to that of the surrendered Note. Interest on each Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be Note issued pursuant to the same indenture as Exchange Offer will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the Issue Date. Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuer shall have no further registration obligations other than the Issuer’s continuing registration obligations with respect to (i) Exchange Notes held by Participating Broker-Dealers and bear the same CUSIP number (ii) Notes or Exchange Notes as the Exchange Notesto which clause (c)(3) of this Section 2 applies. In connection with the Exchange Offer, the Company Issuer shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private ExchangeOffer, if any, the Company Issuer shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn by the Holders pursuant to the Exchange Offer and the Private ExchangeOffer, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each such Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Registrable Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Issuer to proceed with the Exchange Offer or the Private ExchangeOffer, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers Issuer and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem Issuer deems necessary for the consummation of the Exchange Offer or Private ExchangeOffer. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of neither the Exchange Notes, the Private Exchange Notes or nor the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that that:
(i1) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers Issuer to effect the Exchange Offer, ;
(ii2) for any reason the Exchange Offer is not consummated within 180 310 days of the Issue Date, ;
(iii3) a Holder notifies the Company following consummation of the Exchange Offer that Notes held by it are not eligible to be exchanged for Exchange Notes in the Exchange Offer; or
(4) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder Offer or does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuerthe Issuer within the meaning of the Securities Act), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests . (each such event referred to in clauses (i1) through (vi4) of this sentence, a “Shelf Filing Event”), then the Issuers Issuer shall file undertake a Shelf Registration Statement pursuant to Section 3 hereof; provided, however, that the filing of a Shelf Registration Statement as a result of a Shelf Filing Event pursuant to clause (2) of this sentence shall not affect the Issuer’s obligation to consummate the Exchange Offer as promptly as practicable.
Appears in 1 contract
Sources: Registration Rights Agreement (Energy Xxi (Bermuda) LTD)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers The Issuer shall (i) file a Registration Statement (the “"Exchange Offer Registration Statement”") within 75 days after the Issue Date ------------------------------------- with the Commission on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the -------------- Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “"Exchange -------- Notes”") that are identical in all material respects to the Notes (except that ----- the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially its reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act within 150 days after the Issue Date and (iii) use their commercially its reasonable best efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company Issuer will offer the Exchange Notes in exchange for surrender of the Notes. The Company Issuer shall keep the Exchange Offer open for not less than at least 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company Issuer in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer Act or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iviii) if such Holder is not a broker-broker- dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and Notes, (viv) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange NotesNotes and (v) such Holder has full power and authority to transfer the Notes in exchange for the Exchange Notes and that the Issuer will acquire good and unencumbered title thereto free and clear of any liens, restrictions, charges or encumbrances and not subject to any adverse claims.
(b) The Company Issuer and the Initial Purchasers Purchaser acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “"Participating Broker-Dealer”") may be deemed to be an “--------------------------- "underwriter” " within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuer and the Initial Purchasers Purchaser also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Broker- Dealers may resell the Exchange Notes, without naming the Participating Broker-Broker- Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Sola International Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers The Company shall (i) file a Registration Statement (the “"Exchange Offer Registration Statement”") within 90 days after the Issue Date with the Commission on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “"Exchange Notes”") that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially its reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act within 180 days after the Issue Date and (iii) use their commercially its reasonable best efforts to consummate the Exchange Offer within 180 45 days after following the Issue Dateeffective date of the Registration Statement. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (of the Company, as defined in Rule by rule 405 under of the Securities Act) of any Issuer or, or if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and Notes, (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange NotesNotes and (vi) such Holder has full power and authority to transfer the Notes in exchange for the Exchange Notes and that the Company will acquire good and unencumbered title thereto free and clear of any liens, restrictions, charges or encumbrances and not subject to any adverse claims.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “"Participating Broker-Dealer”") may be deemed to be an “"underwriter” " within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “"Requesting Participating Broker-Dealer”"), the Issuers agree Company agrees to use their its reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up not to 210 exceed 180 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof (such period, the “"Applicable Period”"), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, the Initial Purchasers or any Holder Holder, as the case may be, holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of the Initial Purchasers or any such Holder Holder, as the case may be, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasers or any such Holder, as the case may be, in exchange (the “"Private Exchange”") for such Notes held by the Initial Purchasers or any such Holder, as the case may be, a like principal amount of notes (the “"Private Exchange Notes”") of the Company that are identical in all material respects to the Exchange NotesNotes except that the Private Exchange Notes may be subject to restrictions on transfer and bear a legend to such effect. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the Company shall have no further registration obligations other than the Company's continuing registration obligations with respect to (i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which clause (c)(iii) of this Section 2 applies. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn by the Holders pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each such Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Registrable Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers Company and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem Company deems necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers Company to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 225 days of the Issue Date, (iii) any Holder (Holder, other than the an Initial Purchasers) Purchaser, is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that who participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), the Company within the meaning of the Securities Act) or (v) the Initial Purchasers so request with respect to Notes or Private Exchange Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (viv) of this sentence, a “"Shelf Filing Event”"), then the Issuers Company shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. The Company shall, at its cost, prepare and, not later than 60 days after (aor if such 60th day is not a business day, the first business day thereafter) Unless the Exchange Offer would violate applicable law or any applicable interpretation original date of issue of the staff of the Commission, the Issuers shall (i) file a Registration Statement Senior Notes (the “Exchange Offer Registration Statement”) "ISSUE DATE"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate registration form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a registered proposed offer (the “"EXCHANGE OFFER") to the Holders of Transfer Restricted Notes (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Exchange Offer”) , to issue and deliver to such Holders, in exchange any and all of for the Registrable Notes for Senior Notes, a like aggregate principal amount of notes debt securities (including the guarantees with respect thereto, "EXCHANGE NOTES") of the “Exchange Notes”) that are Company issued under the Indenture and identical in all material respects to the Senior Notes (except that for the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (iirelating to the Senior Notes) that would be registered under the Securities Act. The Company shall use their commercially reasonable its best efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act within 120 days (or if such 120th day is not a business day, the first business day thereafter) after the Issue Date of the Senior Notes and shall keep the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less fewer than 20 Business Days business days (or longer longer, if required by applicable law) after the date on which notice of the Exchange Offer is mailed to Holdersthe Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). Each Holder that participates in If the Company effects the Exchange Offer, the Company will be entitled to close the Exchange Offer will be required to represent to 20 business days after the commencement thereof, PROVIDED that the Company has accepted all the Senior Notes theretofore validly tendered in writing that accordance with the terms of the Exchange Offer. Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder of Transfer Restricted Notes (ias defined in Section 6 hereof) any electing to exchange the Senior Notes for Exchange Notes to be received by it will be acquired in (assuming that such Holder is not an affiliate of the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (Company within the meaning of the Securities Act) , acquires the Exchange Notes in the ordinary course of such Holder's business and does not intend and has no arrangements or understandings with any person to participate in the distribution of the Exchange Notes in violation and is not prohibited by any law or policy of the provisions Commission from participating in the Exchange Offer) to trade such Exchange Notes from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. In connection with such Exchange Offer, the Company shall take such further action, including, without limitation, appropriate filings under state securities laws, as may be necessary to realize the foregoing objective subject to the proviso of Section 3(h). The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, (iii) it is not in the absence of an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicableapplicable exemption therefrom, (ivi) if such each Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder that is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects electing to exchange Notes that were Senior Notes, acquired by such broker-dealer for its own account as a result of market-market making activities or other trading activities activities, for Exchange Notes (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in Annex A hereto on the cover, in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Notes received by such Exchanging Dealer pursuant to the Exchange Offer and (a “Participating Broker-Dealer”ii) may be deemed any Initial Purchaser, if it elects to be sell Exchange Notes acquired in exchange for Senior Notes constituting any portion of an “underwriter” within the meaning of the Securities Act and must unsold allotment, is required to deliver a prospectus meeting containing the requirements information required by Item 507 or 508 of Regulation S-K under the Securities Act Act, as applicable, in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes)sale. The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to shall use their its reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for a such period of up time as such persons must comply with such requirements in order to 210 resell the Exchange Notes; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or the Initial Purchasers, such period shall be the lesser of 180 days after and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Registration Statement Notes held by them (unless such period is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof 3(j) below) and (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in writing that such Requesting Participating Broker-Dealers have resold all connection with any resale of any Exchange Notes acquired in for a period not less than 90 days after the consummation of the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to upon consummation of the Exchange Offer, any Holder holds any the Initial Purchasers hold Senior Notes acquired by it that have, or that are reasonably likely to be determined to haveas part of the initial distribution thereof, the status of an unsold allotment in an initial distributionCompany, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in pursuant to the Exchange Offer, shall issue and deliver to any such Holder, the Initial Purchasers upon the written request of the Initial Purchasers in exchange (the “Private Exchange”"PRIVATE EXCHANGE") for such the Senior Notes held by any such Holderthe Initial Purchasers, a like principal amount of notes (the “Private Exchange Notes”) debt securities of the Company that are issued under the Indenture and identical in all material respects (including the existence of restrictions on transfer under the Securities Act and the securities laws of the several states of the United States) to the Exchange NotesSenior Notes (the "PRIVATE EXCHANGE NOTES"). The Private Exchange Notes shall be issued pursuant to the same indenture as Senior Notes, the Exchange Notes and bear the same CUSIP number as Private Exchange Notes are herein collectively called the Exchange Notes"SECURITIES". In connection with the Exchange Offer, the Company shall:
(1a) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2b) keep the Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(3d) permit Holders to withdraw tendered Senior Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day business day on which the Exchange Offer shall remain open; and
(4e) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and or the Private Exchange, if anyas the case may be, the Company shall:
(1i) accept for exchange all the Senior Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2ii) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all the Senior Notes so accepted for exchange; and
(3iii) cause the Trustee to authenticate and deliver promptly to each Holder of the Senior Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Senior Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) Each Holder participating in the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers be required to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect represent to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals Company that at the Issuers (based upon advice time of counsel) deem necessary for the consummation of the Exchange Offer (i) any Exchange Notes received by that Holder will be acquired in the ordinary course of business, (ii) that Holder will have no arrangements or Private Exchange. The understandings with any person to participate in the distribution of the Senior Notes or the Exchange Notes within the meaning of the Securities Act, (iii) that Holder is not an "affiliate", as defined in Rule 405 of the Securities Act, of the Company or any Subsidiary Guarantor or if it is an affiliate, that Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if that Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Notes and the Private (v) if that Holder is a broker-dealer, that it will receive Exchange Notes shall for its own account in exchange for Senior Notes that were acquired as a result of market-making activities or other trading activities and that it will be issued under (i) the Indenture or (ii) an indenture identical required to acknowledge that it will deliver a prospectus in all material respects to the Indenture (in either case, with such changes as are necessary to comply connection with any requirements resale of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes. Notwithstanding any other provisions hereof, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes Company will have the right to vote or consent as a separate class on any matter.
(c) In the event ensure that (i) any changes Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies as to form in law or all material respects with the applicable interpretations of Securities Act and the staff of the Commission do not permit the Issuers to effect the Exchange Offerrules and regulations thereunder, (ii) for any reason the Exchange Offer is Registration Statement and any amendment thereto does not, when it becomes effective, contain an 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 consummated within 180 days of the Issue Date, misleading and (iii) any Holder (other than prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not, as of its date, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the Initial Purchasers) is prohibited by law or statements therein, in the applicable interpretations light of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offercircumstances under which they were made, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereofmisleading.
Appears in 1 contract
Sources: Registration Rights Agreement (Brazos Sportswear Inc /De/)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the The Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”"EXCHANGE OFFER REGISTRATION STATEMENT") within 90 days after the Issue Date with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”"EXCHANGE OFFER") to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”"EXCHANGE NOTES") that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially respective reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act within 150 days after the Issue Date and (iii) use their commercially respective reasonable best efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable lawlaw or otherwise extended by the Company at the Company's option) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker"PARTICIPATING BROKER-Dealer”DEALER") may be deemed to be an “"underwriter” " within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker"REQUESTING PARTICIPATING BROKER-Dealer”DEALER"), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 180 days after the date on which the Exchange Offer Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof (such period, the “Applicable Period”"APPLICABLE PERIOD"), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”"PRIVATE EXCHANGE") for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”"PRIVATE EXCHANGE NOTES") of the Company that are identical in all material respects to the Exchange Note, except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers Company and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem Company deems necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such other indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”"SHELF FILING EVENT"), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law law, public policy or any applicable interpretation of the staff of the Commission, the Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an Form S-4 or another appropriate Securities Act registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain restrictive legends, terms with respect to transfer restrictions or Liquidated Damages Additional Interest upon a Registration Default), (ii) use their commercially reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act within 180 days after the date of this Agreement and (iii) use their commercially reasonable best efforts to consummate the Exchange Offer within 180 240 days after the Issue Datedate of this Agreement. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company Issuers will offer the Exchange Notes in exchange for surrender of the Notes. The Company Issuers shall keep the Exchange Offer open for not less than 20 Business Days business days (or longer if required by applicable law, including, without limitation, Regulation 14E under the Exchange Act) after the date notice of the Exchange Offer is mailed first mailed, sent or given to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company Issuers in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the public distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (“affiliate” as defined in by Rule 405 under of the Securities Act) Act of any Issuer orof the Issuers, or if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a public distribution of the Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange Notes.
(b) The Company Issuers and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuers and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect set forth in the immediately preceding paragraph and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up necessary to 210 comply with applicable law in connection with such resales but in no event more than 180 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to any Delay Period in accordance with the penultimate last paragraph of Section 5 hereof (such period, the “Applicable Period”)hereof, or such earlier date as all each Requesting Participating Broker-Dealers Dealer shall have notified the Company in writing that such Requesting Participating Broker-Dealers have Dealer has resold all Exchange Notes acquired by it in the Exchange OfferOffer (such period, the “Applicable Period”). The Company Issuers shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Initial Purchaser or any other Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company Issuers upon the request of the Initial Purchasers or any such Holder Holder, as the case may be, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasers or any such Holder, as the case may be, in exchange (the “Private Exchange”) for such Notes held by such Initial Purchaser or any such Holder, Holder a like principal amount of notes (the “Private Exchange Notes”) of the Company Issuers that are identical in all material respects to the Exchange NotesNotes except that the Private Exchange Notes may be subject to restrictions on transfer and bear a legend to such effect. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes (if permitted by the CUSIP Service Bureau), Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuers shall have no further registration obligations other than the Issuers’ continuing registration obligations with respect to (i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which clause (c)(iv) of this Section 2 applies. In connection with the Exchange Offer, the Company Issuers shall:
(1) mail or cause to be mailed to each Holder through the depositary for the Notes or otherwise entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations (including, without limitation, Regulation 14E under the Exchange Act). As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company Issuers shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn by the Holders pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each such Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Registrable Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem Company deems necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the
(b) the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Private Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law law, public policy or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 240 days of the Issue Datedate of this Agreement, (iii) any Holder (other than notifies the Initial Purchasers) Company prior to the 30th day following consummation of the Exchange Offer that it is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, Offer or (iv) in the case of any Holder that who participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder Holder as an affiliate of any Issuer), (vIssuer within the meaning of the Securities Act and provided that such Holder provides the Company with notice of such event prior to the 90th day following the date of the exchange date) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (viiv) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
(d) Each of the Issuers 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.
Appears in 1 contract
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice occurrence of the Exchange Offer is mailed to Holders. Each Holder that participates in accordance with the Exchange Offer will be required to represent to Registration Rights Agreement, the Company shall issue and, upon receipt of a Company Order in writing that accordance with Section 2.3 of the Indenture and an Opinion of Counsel for the Company as to certain matters discussed in this Section 5.01(f), the Trustee shall authenticate (i) any Exchange one or more Unrestricted Global Notes in an aggregate principal amount equal to be received by it will be acquired the sum of (A) the principal amount of the beneficial interests in the ordinary course Restricted Global Notes tendered for acceptance by Persons who certify in the applicable Letters of its businessTransmittal that (x) they are not Broker-Dealers, (iiy) it has no arrangement or understanding with any Person to participate they are not participating in the a distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, and (iiiz) it is they are not an affiliate affiliates (as defined in Rule 405 under the Securities Act144) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged inCompany, and does not intend to engage in, a distribution of accepted for exchange in the Exchange Notes Offer and (vB) if such Holder is a broker-dealer that will receive Exchange the principal amount of Certificated Notes exchanged or transferred for its own account beneficial interests in exchange for Unrestricted Global Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such the Exchange Notes.
Offer pursuant to Section 5.01(d)(ii) and (bii) The Company and Certificated Notes in an aggregate principal amount equal to the Initial Purchasers acknowledge that the staff principal amount of the Commission has taken the position that any broker-dealer that elects to Restricted Certificated Notes accepted for exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”other than Certificated Notes described in clause (i)(B) may be deemed immediately above). Concurrently with the issuance of such Series E Notes, the Trustee shall cause the aggregate principal amount of the applicable Restricted Global Notes to be an “underwriter” within reduced accordingly, and the meaning Company shall execute and, upon receipt of a Company Order pursuant to Section 2.3 of the Securities Act Indenture, the Trustee shall authenticate and must deliver a prospectus meeting to the requirements Persons designated by the Holders of Certificated Notes so accepted Certificated Notes in the appropriate principal amount. The Opinion of Counsel for the Company referenced above shall state that:
(1) the Exchange Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Securities Act Indenture and delivered in connection exchange for Series D Notes in accordance with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Indenture and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to will be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability and (z)other customary limitations and exceptions for opinions of such type; and
(2) when the Exchange Notes are executed and authenticated in accordance with the provisions of the Indenture and delivered in exchange for Series D Notes in accordance with the Indenture and the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery Guarantees of the Exchange Notes in by the Exchange Offer, issue and deliver Subsidiary Guarantors will be entitled to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) benefits of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall Indenture and will be issued pursuant to the same indenture as the Exchange Notes valid and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy binding obligations of the Prospectus forming part of the Exchange Offer Registration StatementSubsidiary Guarantors, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation enforceable in accordance with Section 5(ttheir terms except as (x) all Notes so accepted the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability and (z) other customary limitations and exceptions for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes opinions of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any mattertype.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Fourth Supplemental Indenture (HMC Swiss Holdings LLC)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice occurrence of the Exchange Offer is mailed to Holders. Each Holder that participates in accordance with the Exchange Offer will be required to represent to Registration Rights Agreement, the Company shall issue and, upon receipt of a Company Order in writing that accordance with Section 2.3 of the Indenture and an Opinion of Counsel for the Company as to certain matters discussed in this Section 6.01(f), the Trustee shall authenticate (i) any Exchange one or more Unrestricted Global Notes in an aggregate principal amount equal to be received by it will be acquired the sum of (A) the principal amount of the beneficial interests in the ordinary course Restricted Global Notes tendered for acceptance by Persons who certify in the applicable Letters of its businessTransmittal that (x) they are not Broker-Dealers, (iiy) it has no arrangement or understanding with any Person to participate they are not participating in the a distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, and (iiiz) it is they are not an affiliate affiliates (as defined in Rule 405 under the Securities Act144) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged inCompany, and does not intend to engage in, a distribution of accepted for exchange in the Exchange Notes Offer and (vB) if such Holder is a broker-dealer that will receive Exchange the principal amount of Certificated Notes exchanged or transferred for its own account beneficial interests in exchange for Unrestricted Global Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such the Exchange Notes.
Offer pursuant to Section 6.01(d)(ii) and (bii) The Company and Certificated Notes in an aggregate principal amount equal to the Initial Purchasers acknowledge that the staff principal amount of the Commission has taken the position that any broker-dealer that elects to Restricted Certificated Notes accepted for exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”other than Certificated Notes described in clause (i)(B) may be deemed to be an “underwriter” within immediately above). Concurrently with the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale issuance of such Exchange Notes (other than a resale of an unsold allotment resulting from Notes, the original offering Trustee shall cause the aggregate principal amount of the Notes)applicable Restricted Global Notes to be reduced accordingly, and the Company shall execute and, upon receipt of a Company Order pursuant to Section 2.3 of the Indenture, the Trustee shall authenticate and deliver to the Persons designated by the Holders of Certificated Notes so accepted Certificated Notes in the appropriate principal amount. The Opinion of Counsel for the Company referenced above shall state that:
(1) the Exchange Notes have been duly authorized and, when executed and authenticated in accordance with the Initial Purchasers also acknowledge that the staff provisions of the Commission has taken Indenture delivered in exchange for Series W Notes in accordance with the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect Indenture and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to will be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally, (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability and (z) other customary limitations and exceptions for opinions of such type; and (2) when the Exchange Notes are executed and authenticated in accordance with the provisions of the Indenture and delivered in exchange for Series W Notes in accordance with the Indenture and the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery Guarantee of the Exchange Notes in by the Exchange Offer, issue and deliver Subsidiary Guarantors will be entitled to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) benefits of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall Indenture and will be issued pursuant to the same indenture as the Exchange Notes valid and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy binding obligations of the Prospectus forming part of the Exchange Offer Registration StatementSubsidiary Guarantors, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation enforceable in accordance with Section 5(ttheir terms except as (x) all Notes so accepted for exchange; and
the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally, (3y) cause the Trustee to authenticate and deliver promptly to each Holder rights of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer acceleration and the Private Exchange shall not availability of equitable remedies may be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation limited by equitable principles of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers general applicability and (iiiz) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary other customary limitations and exceptions for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) opinions of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereoftype.
Appears in 1 contract
Sources: Supplemental Indenture (Host Hotels & Resorts, Inc.)
Exchange Offer. (a) Unless To the Exchange Offer would violate extent not prohibited by applicable -------------- law or any applicable interpretation of the staff of the CommissionSEC, the Issuers Company shall (i) use its reasonable best efforts to file with the SEC a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect relating to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being have declared effective by the Commission, SEC such Registration Statement no later than on or prior to the Company will Effective Date. The offer and sale of the Exchange Notes in exchange for surrender of the Notes. The Company shall keep pursuant to the Exchange Offer open for not less than 20 Business Days (shall be registered pursuant to the Securities Act on the appropriate form and duly registered or longer if required by qualified under all applicable law) after the date notice state securities or Blue Sky laws and will comply with all applicable tender offer rules and regulations of the Exchange Act and state securities or Blue Sky laws. The Exchange Offer is mailed shall not be subject to Holdersany condition, other than that the Exchange Offer does not violate any applicable law or interpretation of the staff of the SEC. Each No securities shall be included in the Registration Statement covering the Exchange Offer other than the Notes and the Exchange Notes.
(b) The Company may require each Holder that participates of Transfer Restricted Securities as a condition to its participation in the Exchange Offer will be required to represent to the Company and its counsel in writing (which may be contained in 0000G54F.W51 the applicable letter of transmittal) that at the time of the consummation of the Exchange Offer (i) any Exchange Notes to be received by it such Holder will be acquired in the ordinary course of its business, (ii) it has such Holder will have no arrangement or understanding with any Person person to participate in the distribution (of the Notes or the Exchange Notes within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under if the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealerdealer or is a broker-dealer but will not receive Exchange Notes for its own account in exchange for Notes, it neither the Holder nor any such other Person is not engaged in, and does not intend in or intends to engage in, participate in a distribution of the Exchange Notes and (viv) if that such Holder is not an Affiliate of the Company. If the Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes, it will represent that the Notes that to be exchanged for the Exchange Notes were acquired by it as a result of market-making activities or other trading activities, and acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any re-sale resale of such Exchange Notes. It is understood that by acknowledging that it will deliver and by delivering a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Notes, the Holder is not admitting that it is an "underwriter" within the meaning of the Act.
(bc) Unless the Exchange Offer would not be permitted by any applicable law or interpretation of the staff of the SEC, the Company shall commence the Exchange Offer (within the time periods set forth herein) by mailing the related exchange offer prospectus and appropriate accompanying documents to each Holder of Transfer Restricted Securities providing, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Notes validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (the "Exchange Date"), which date shall in no event be later than the Consummation Date;
(iii) that Holders of Transfer Restricted Securities electing to have a Note exchanged pursuant to the Exchange Offer will be required to surrender such Note or $1,000 integral multiple principal amount at maturity portion thereof, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇.▇▇▇ ▇▇▇▇) specified in the notice prior to the close of business on the Exchange Date; and
(iv) that Holders of Transfer Restricted Securities that do not tender all such securities pursuant to the Exchange Offer will no longer have any registration rights hereunder with respect to securities not tendered. Promptly after the Exchange Date, the Company shall:
(i) accept for exchange all Notes or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Notes or portions thereof so accepted for exchange by the Company, and issue, or cause the Trustee under the Indenture to authenticate and mail to each Holder, an Exchange Note equal in principal amount at maturity to the principal amount at maturity of the Notes surrendered by such Holder.
(d) The Company and the Initial Purchasers acknowledge each Purchaser acknowledges that the staff of the Commission SEC has taken the position that any broker-dealer that elects to exchange owns Exchange Notes that were acquired received by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “"Participating Broker-Dealer”") may be deemed to be an “"underwriter” " within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering placement of the Notes). The Company and each Purchaser also acknowledges that it is the Initial Purchasers also acknowledge that the staff of the Commission has taken the SEC staff's position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers BrokerDealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Price Communications Cellular Inc)
Exchange Offer. (a) Unless To the Exchange Offer would violate extent not prohibited by any applicable law or any applicable interpretation of the staff of the CommissionSEC, the Issuers shall (iA) prepare and, on or prior to 60 days after the date of original issuance of the Notes (the "Issue Date"), file with the SEC a Registration Statement (under the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form Securities Act with respect to a registered an offer (by the “Exchange Offer”) Company to exchange any and all the holders of the Registrable Notes to issue and deliver to such holders, in exchange for Notes, a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (iiB) use their commercially reasonable best efforts to cause the Registration Statement relating to the Exchange Offer Registration Statement to be declared effective by the SEC under the Securities Act and (iii) use their commercially reasonable efforts on or prior to consummate the Exchange Offer within 180 150 days after the Issue Date. Upon , and (C) commence the Exchange Offer Registration Statement being declared effective by and use their best efforts to issue, on or prior to the CommissionConsummation Date, the Company will Exchange Notes. The offer and sale of the Exchange Notes in exchange for surrender of the Notes. The Company shall keep pursuant to the Exchange Offer open for shall be registered pursuant to the Securities Act on the appropriate form (the "Exchange Registration Statement") and duly registered or qualified under all applicable state securities or Blue Sky laws and will comply with all applicable tender offer rules and regulations under the Exchange Act and state securities or Blue Sky laws. The Exchange Offer shall not less be subject to any condition, other than 20 Business Days (that the Exchange Offer does not violate any applicable law or longer if required by applicable law) after interpretation of the date notice staff of the SEC. Upon consummation of the Exchange Offer is mailed in accordance with this Section 2, the Issuers shall have no further registration obligations other than with respect to Holders(i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which Section 3(a)(iii) hereof applies. Each Holder that participates No securities shall be included in the Exchange Registration Statement other than the Exchange Notes.
(b) The Issuers may require each holder of Notes as a condition to its participation in the Exchange Offer will be required to represent to the Company Issuers and their counsel in writing (which may be contained in the applicable letter of transmittal) that at the time of the consummation of the Exchange Offer (i) any Exchange Notes to be received by it such holder will be acquired in the ordinary course of its business, (ii) it has such holder will have no arrangement or understanding with any Person person to participate in the distribution (within the meaning mean- ing of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, and (iii) it such holder is not an affiliate (as defined in Rule 405 under the Securities Act) Affiliate of any Issuer oran Issuer, or if it is an affiliateAffiliate of an Issuer, it will comply with the registration and prospectus delivery requirements of the Securities Act Act, to the extent applicable.
(c) If, (iv) if such Holder prior to consummation of the Exchange Offer, an Initial Purchaser holds any Notes acquired by it and having, or which are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, or any other holder of Notes is not a broker-dealerentitled to participate in the Exchange Offer, it is not engaged inthe Company upon the request of such Initial Purchaser or any such holder shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and does not intend deliver to engage insuch Initial Purchaser and any such holder, in exchange (the "Private Exchange") for such Notes held by such Initial Purchaser and any such holder, a distribution like principal amount of debt securities of the Company, guaranteed by each of the Guarantors on a senior subordinated basis, that are identical in all material respects to the Exchange Notes (the "Private Exchange Notes") (and (v) if such Holder is a broker-dealer that will receive which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes for its own account in exchange for Notes that were acquired shall bear the same CUSIP number as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such the Exchange Notes.
(bd) Unless the Exchange Offer would not be permitted by any applicable law or interpretation of the staff of the SEC, the Company shall mail the Exchange Offer Prospectus and appropriate accompanying documents, including appropriate letters of transmittal, to each holder of Notes providing, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Notes validly tendered will be accepted for exchange;
(ii) the date of acceptance for exchange (the "Exchange Date"), which date shall in no event be later than the Consummation Date (unless otherwise required by applicable law);
(iv) that holders of Notes that do not tender all such securities pursuant to the Exchange Offer may no longer have any registration rights hereunder with respect to Notes not tendered. Promptly after the Exchange Date, the Company shall:
(i) accept for exchange all Notes or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer or the Private Exchange; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Notes or portions thereof so accepted for exchange by the Company, and issue, cause the Trustee under the Indenture (or the indenture pursuant to which the Exchange Notes are issued) to authenticate, and mail to each holder of Notes, Exchange Notes equal in principal amount to the principal amount of the Notes surrendered by such holder.
(e) The Company Issuers and the Initial Purchasers acknowledge that the staff of the Commission SEC has taken the position that any broker-dealer that elects to exchange owns Exchange Notes that were acquired received by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “"Participating Broker-Dealer”") may be deemed to be an “"underwriter” " within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuers and the Initial Purchasers also acknowledge that it is the staff of the Commission has taken the SEC staff's position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree (x) to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), 6 months or such earlier date as all Requesting each Participating Broker-Dealers Dealer shall have notified the Company in writing that such Requesting Participating Broker-Dealers have Dealer has resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior (y) to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously comply with the delivery provisions of the Exchange Notes in the Exchange OfferSection 5 of this Agreement, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant they relate to the Exchange Offer and the Private Exchange;Exchange Registration Statement, and (z) to deliver to such Participating Broker-Dealer a "cold comfort" letter of the independent public accountants of the Issuers and a legal opinion as to matters reasonably requested by such Participating Broker-Dealer relating to the Exchange Registration Statement and the related Prospectus and any amendments or supplements thereto.
(2f) deliver or cause The Initial Purchasers shall have no liability to be delivered any Participating Broker-Dealer with respect to the Trustee for cancellation in accordance with any request made pursuant to Section 5(t) all Notes so accepted for exchange; and2(e).
(3g) cause Interest on the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditionsNotes will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, other than that (i) if no interest has been paid on the Exchange Offer or Private ExchangeNotes, as from the case may be, does not violate applicable law or any applicable interpretation date of the staff original issuance of the Commission, Notes.
(iih) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall may be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (Indenture, which in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and event shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of neither the Exchange Notes, the Private Exchange Notes or nor the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless To the Exchange Offer would violate extent not prohibited by any applicable law or any applicable interpretation of the staff of the CommissionSEC, the Issuers shall (iA) prepare and, on or prior to 30 days after the date of original issuance of the Notes (the "Issue Date"), file with the SEC a Registration Statement (under the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form Securities Act with respect to a registered an offer (by the “Exchange Offer”) Company to exchange any and all the holders of the Registrable Notes to issue and deliver to such holders, in exchange for Notes, a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (iiB) use their commercially reasonable best efforts to cause the Registration Statement relating to the Exchange Offer Registration Statement to be declared effective by the SEC under the Securities Act and (iii) use their commercially reasonable efforts on or prior to consummate the Exchange Offer within 180 90 days after the Issue Date. Upon , and (C) promptly following the declaration of the effectiveness of the Exchange Registration Statement, commence the Exchange Offer Registration Statement being declared effective by and use their best efforts to issue, on or prior to the CommissionConsummation Date, the Company will Exchange Notes. The offer and sale of the Exchange Notes in exchange for surrender of the Notes. The Company shall keep pursuant to the Exchange Offer open for shall be registered pursuant to the Securities Act on an appropriate form (the "Exchange Registration Statement") and duly registered or qualified under all applicable state securities or Blue Sky laws and will comply with all applicable tender offer rules and regulations under the Exchange Act and state securities or Blue Sky laws. The Exchange Offer shall not less be subject to any condition, other than 20 Business Days that the Exchange Offer does not violate any applicable law or interpretation of the staff of the SEC. No 8 securities shall be included in the Exchange Registration Statement other than the Exchange Notes.
(or longer if required by b) The Issuers may require each holder of Notes, as a condition to its participation in the Exchange Offer, to represent to the Issuers and their counsel in writing (which may be contained in the applicable lawletter of transmittal) after that at the date notice time of the consummation of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it such holder will be acquired in the ordinary course of its business, (ii) it has such holder will have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, and (iii) it such holder is not an affiliate (as defined in Rule 405 under the Securities Act) Affiliate of any Issuer oran Issuer, or if it is an affiliateAffiliate of an Issuer, it will comply with the registration and prospectus delivery requirements of the Securities Act Act, to the extent applicable.
(c) If, (iv) if such Holder prior to consummation of the Exchange Offer, the Initial Purchaser holds any Notes acquired by it and having, or which are reasonably likely to be determined to have, based on the written advice of Special Counsel, the status of an unsold allotment in the initial distribution, or any other holder of Notes is not entitled, as a broker-dealermatter of law or based on an interpretation or position of the staff of the SEC, it is not engaged into participate in the Exchange Offer, the Issuers, upon the request of the Initial Purchaser or any such holder, shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and does not intend deliver to engage inthe Initial Purchaser and any such holder, in exchange (the "Private Exchange") for such Notes held by the Initial Purchaser and any such holder, a distribution like principal amount of debt securities of the Issuers that are identical in all material respects to the Exchange Notes (the "Private Exchange Notes") (and (v) if such Holder is a broker-dealer that will receive which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes for its own account in exchange for Notes that were acquired shall bear the same CUSIP number as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such the Exchange Notes.
(bd) Unless the Exchange Offer would not be permitted by any applicable law or interpretation thereof of the staff of the SEC, the Company shall mail the Exchange Offer Prospectus and appropriate accompanying documents, including appropriate letters of transmittal, to each holder of Notes providing, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Notes validly tendered will be accepted for exchange;
(ii) the date of acceptance for exchange (the "Exchange Date"), which date shall in no event be later than the Consummation Date (unless otherwise required by applicable law);
(iii) that a holder of a Note electing to have a Note exchanged pursuant to the Exchange Offer will be required to surrender such Note, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the Exchange Date; and
(iv) that holders of Notes that do not validly tender all such securities pursuant to the Exchange Offer may no longer have any registration rights hereunder with respect to Notes not validly tendered. Promptly after the Exchange Date, the Company shall:
(i) accept for exchange all Notes or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Notes or portions thereof so accepted for exchange by the Company, and issue, cause the Trustee under the Indenture (or the indenture pursuant to which the Exchange Notes are issued) to authenticate, and mail to each holder of Notes, Exchange Notes equal in principal amount to the principal amount of the Notes surrendered by such holder.
(e) The Company and the Initial Purchasers Purchaser acknowledge that the staff of the Commission SEC has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “"Participating Broker-Dealer”") may be deemed to be an “"underwriter” " within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers Purchaser also acknowledge that it is the staff of the Commission has taken the SEC staff's position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “"Requesting Participating Broker-Dealer”"), the Issuers agree (x) to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days six months after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), Consummation Date or such earlier date as all each Requesting Participating Broker-Dealers Dealer shall have notified the Company in writing that such Requesting Participating Broker-Dealers have Dealer has resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior and (y) to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously comply with the delivery provisions of the Exchange Notes in the Exchange OfferSection 5 of this Agreement, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant they relate to the Exchange Offer and the Private Exchange;Exchange Registration Statement.
(2f) deliver or cause The Initial Purchaser shall have no liability to be delivered any Requesting Participating Broker-Dealer with respect to the Trustee for cancellation in accordance with any request made pursuant to Section 5(t) all Notes so accepted for exchange; and2(e).
(3g) cause Interest on the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditionsNotes will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, other than that if no interest has been paid on the Notes, from the Issue Date.
(ih) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall may be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (Indenture, which in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and event shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the IndentureInden- ture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of neither the Exchange Notes, the Private Exchange Notes or nor the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (LDM Technologies Co)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the The Issuers shall (i) use commercially reasonable efforts to file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes notes, together with the Guarantees endorsed thereon (including the guarantees with respect thereto, the “Exchange Notes”) ), that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their all commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their all commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company Issuers will offer the Exchange Notes in exchange for surrender of the Notes. The Company Issuers shall keep the Exchange Offer open for not less than 20 Business Days 30 days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company Issuers in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate of the Issuers (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange Notes.
(b) The Company Issuers and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuers and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their all reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up not to 210 exceed 180 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all each Requesting Participating Broker-Dealers Dealer shall have notified the Company Issuers in writing that such Requesting Participating Broker-Dealers have Dealer has resold all Exchange Notes acquired by it in the Exchange Offer. The Company Issuers shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, the Initial Purchasers or any Holder Holder, as the case may be, holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company Issuers upon the request of any such Holder Initial Purchaser or any such Holder, as the case may be, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Initial Purchaser or any such Holder, as the case may be, in exchange (the “Private Exchange”) for such Notes held by the Initial Purchasers or any such Holder, as the case may be, a like principal amount of notes notes, together with the Guarantees endorsed thereon (the “Private Exchange Notes”) ), of the Company Issuers that are identical in all material respects to the Exchange NotesNotes except that the Private Exchange Notes may be subject to restrictions on transfer and bear a legend to such effect. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes (if permitted by the CUSIP Service Bureau). For each Note surrendered in the Exchange Offer, the Holder will receive an Exchange Note having a principal amount equal to that of the surrendered Note. Interest on each Exchange Note and Private Exchange Note issued pursuant to the Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the Issue Date. Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuers shall have no further registration obligations other than the Issuers’ continuing registration obligations with respect to (i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which clause (c)(iii) of this Section 2 applies. In connection with the Exchange Offer, the Company Issuers shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate thereof;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn by the Holders pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each such Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Registrable Notes of such Holder so accepted for exchange; provided that in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIATIA or exemption from such qualification) and which, in either case, has been qualified under the TIA and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (Holder, other than any of the Initial Purchasers) , is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange OfferOffer or, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder Holder as an affiliate of the Issuers within the meaning of the Securities Act) or (iv) any Issuer), (v) the Initial Purchasers Purchaser so request requests with respect to Notes or Private Exchange Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (viiv) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Advanced Medical Optics Inc)
Exchange Offer. (a) Unless The Issuer shall, for the Exchange Offer would violate applicable law or any applicable interpretation benefit of the staff of Holders, at the CommissionIssuer’s cost, use its reasonable best efforts to (A) prepare and file with the Issuers shall (i) file a Registration Statement (the “SEC an Exchange Offer Registration Statement”) with the Commission Statement on an appropriate registration form under the 1933 Act with respect to a registered offer (proposed Exchange Offer and the “Exchange Offer”) issuance and delivery to the Holders, in exchange any and all of for the Registrable Notes for Securities (other than Private Exchange Securities), of a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default)Securities, (iiB) use their commercially reasonable efforts to cause keep the Exchange Offer Registration Statement to be declared effective under until the Securities Act and (iii) use their commercially reasonable efforts to consummate closing of the Exchange Offer within 180 and (C) cause the Exchange Offer to be consummated not later than 360 days after following the Issue Closing Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice effectiveness of the Exchange Offer is mailed to Holders. Each Holder that participates in Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer will be required to represent enable each Holder eligible and electing to exchange Registrable Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company in writing that Issuer within the meaning of Rule 405 under the 1933 Act, (ib) any is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer for its own account, (c) acquired the Exchange Notes to be received by it will be acquired Securities in the ordinary course of its business, such Holder’s business and (iid) it has no arrangement arrangements or understanding understandings with any Person to participate in the distribution (within Exchange Offer for the meaning purpose of the Securities Act) of distributing the Exchange Notes in violation of the provisions of the Securities) to transfer such Exchange Securities Act, (iii) it is not an affiliate (as defined in Rule 405 from and after their receipt without any limitations or restrictions under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities 1933 Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers under state securities or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notesblue sky laws. In connection with the Exchange Offer, the Company Issuer shall:
(1a) mail or cause to be mailed as promptly as practicable to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2b) keep the Exchange Offer open for acceptance for a period of not less than 20 business days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(c) utilize the services of a depositary the Depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkOffer;
(3d) permit Holders to withdraw tendered Notes Registrable Securities at any time prior to 5:00 p.m., p.m. (New York timeCity Time), on the last Business Day on which business day of the Exchange Offer shall Period, by sending to the institution specified in the notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(e) notify each Holder that any Registrable Security not tendered will remain openoutstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(4f) otherwise comply in all material respects with all applicable lawslaws relating to the Exchange Offer. If, rules prior to consummation of the Exchange Offer, the Initial Purchasers hold any Securities acquired by them and regulationshaving the status of an unsold allotment in the initial distribution, the Issuer upon the written request of any Initial Purchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities that are identical to the Exchange Securities, except that such securities shall bear appropriate transfer restrictions (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that the Exchange Securities, the Private Exchange Securities and the Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, the Private Exchange Securities or the Securities will have the right to vote or consent as a separate class on any matter. The Private Exchange Securities shall be of the same series as and the Issuer shall use all commercially reasonable efforts to have the Private Exchange Securities bear the same CUSIP number as the Exchange Securities. The Issuer shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. As soon as practicable after the close of the Exchange Offer and and/or the Private Exchange, if anyas the case may be, the Company Issuer shall:
(1i) accept for exchange all Notes validly Registrable Securities duly tendered and not validly withdrawn pursuant to the Exchange Offer and in accordance with the terms of the Exchange Offer Registration Statement;
(ii) accept for exchange all Securities properly tendered pursuant to the Private Exchange;
(2iii) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes Registrable Securities so accepted for exchange; and
(3iv) cause the Trustee promptly to authenticate and deliver promptly to each Holder of Notes, Exchange Notes Securities or Private Exchange NotesSecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the Notes principal amount of the Registrable Securities of such Holder so accepted for exchange. Interest on each Exchange Security and Private Exchange Security will accrue from the last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of original issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) that the Exchange Offer or the Private Exchange, as or the case may bemaking of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the CommissionSEC, (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities exchanged in the Exchange Offer shall have represented that all Exchange Securities to be received by it shall be acquired in the ordinary course of its business and that at the time of the consummation of the Exchange Offer it shall have no arrangement or understanding with any person to participate in the distribution (within the meaning of the ▇▇▇▇ ▇▇▇) of the Exchange Securities and shall have made such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form S-4 or other appropriate form under the 1933 Act available, (iv) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency which might materially with respect to the Exchange Offer or the Private Exchange which, in the Issuer’s judgment, would reasonably be expected to impair the ability of the Issuers Issuer to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers Issuer and (iiiv) all governmental approvals shall have been obtained, obtained which approvals the Issuers (based upon advice of counsel) deem Issuer deems necessary for the consummation of the Exchange Offer or Private ExchangeOffer. The Issuer shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Notes Offer is made, and the Private Exchange Notes Initial Purchasers shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In contact such Holders and otherwise facilitate the event that (i) any changes in law or the applicable interpretations tender of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating Registrable Securities in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Silver Lake Partners Ii L P)
Exchange Offer. (a) Unless the Exchange Offer would not be permitted by applicable laws or a policy of the Commission, the Company shall (and shall cause each Guarantor to)
(i) prepare and file with the Commission after the date hereof a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes, (ii) use its commercially reasonable efforts to have the Exchange Offer Registration Statement declared effective by the Commission after the filing thereof, and in no event later than the Effectiveness Target Date, (iii) use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, and (iv) commence the Exchange Offer and use its commercially reasonable efforts to issue, on or prior to the Exchange Consummation Target Date, Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the Commission.
(b) The Exchange Notes shall be issued under, and entitled to the Issuers shall benefits of the Indenture or a trust indenture that is identical to the Indenture (i) file a Registration Statement (the “Exchange Offer Registration Statement”) other than such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualifications thereof under the TIA).
(c) Interest on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Private Exchange Notes will accrue from the last interest payment due date on which interest was paid on the Notes surrendered in exchange for surrender therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes. Each Exchange Note and Private Exchange Note shall bear interest at the rate set forth thereon.
(d) The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed will require each Holder as a condition to Holders. Each Holder that participates participation in the Exchange Offer will be required to represent to the Company in writing that (i) that any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it that at the time of the commencement and consummation of the Exchange Offer such Holder has no not entered into any arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it that if such Holder is not an affiliate (as defined in “affiliate” of the Company within the meaning of Rule 405 under of the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicableapplicable to it, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, a the distribution of Exchange Notes and the Notes; (v) if such Holder is a Participating Broker-Dealer, that it will deliver a Prospectus in connection with any resale of the Exchange Notes; and (vi) such Holder is not acting on behalf of any Person who could not truthfully make the foregoing representations.
(e) The Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution” reasonably acceptable to the Initial Purchasers which shall contain a summary statement of the positions taken or policies made by the staff of the Commission with respect to the potential “underwriter” status of any broker-dealer that will receive is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer activity (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of ), whether such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that positions or policies have been publicly disseminated by the staff of the Commission has taken or such positions or policies, in the position that if reasonable judgment of the Initial Purchasers based upon advice of counsel, represent the prevailing views of the staff of the Commission. Such “Plan of Distribution” section shall also allow, to the extent permitted by applicable policies and regulations of the Commission, the use of the Prospectus contained in by all Persons subject to the Exchange Offer Registration Statement includes a plan prospectus delivery requirements of distribution containing the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and shall include a statement to describing the above effect and the means by manner in which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to The Company shall use their its commercially reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for a such period of up time as such Persons must comply with such requirements in order to 210 resell the Exchange Notes; provided that such period shall not exceed the lesser of 180 days after and the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant all Persons subject to the penultimate paragraph prospectus delivery requirements of Section 5 hereof the Securities Act have sold all Exchange Notes held by them (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. .
(f) If, prior to upon consummation of the Exchange Offer, any Holder holds the Initial Purchasers hold any Notes acquired by it that have, or that are reasonably likely to be determined to have, them and having the status of an unsold allotment in an the initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company (upon the written request of any such Holder shall from the Initial Purchasers) shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holderthe Initial Purchasers, in exchange (the “Private Exchange”) for such the Notes held by any such Holderthe Initial Purchasers, a like principal amount of notes Notes that are identical to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States (the “Private Exchange Notes”) of (and which are issued pursuant to the Company that are identical in all material respects to same Indenture as the Exchange Notes). The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. , if permitted by the CUSIP Services Bureau.
(g) In connection with the Exchange Offer, the Company shall:shall (and shall cause each Guarantor to, to the extent necessary):
(1i) mail mail, or cause to be mailed mailed, to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal that is an exhibit to the Exchange Offer Registration Statement, and any related documents;
(2ii) keep the Exchange Offer open for not less than 20 Business Days after the date that notice thereof is mailed to the Holders (or longer if required by applicable law)
(iii) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The the City of New YorkYork or in Wilmington, Delaware, which may be the Trustee or an affiliate thereof;
(3iv) permit Holders to withdraw tendered Notes Entitled Securities at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4v) otherwise comply in all material respects with all applicable laws, rules and regulations. laws related to the Exchange Offer.
(h) As soon as practicable after the close of the Exchange Offer and or the Private Exchange, if anyas the case may be, the Company shall:shall (and shall cause each Guarantor to, to the extent necessary):
(1i) accept for exchange all Notes Entitled Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and or the Private Exchange, as the case may be, and not validly withdrawn;
(2ii) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes Entitled Securities so accepted for exchange; and
(3iii) cause the Trustee to authenticate and deliver promptly to each Holder of Notestendering such Entitled Securities, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that .
(i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall may be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with other than such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which), which in either case, has been qualified under the TIA and shall event will provide that the Exchange Notes shall will not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide , that the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture, and that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as Notes, if any, will be deemed one class and that none of securities (subject to the provisions of the Exchange Notes, Indenture) and entitled to participate in any Guarantee (as such terms are defined in the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class Indenture) on any matteran equal and ratable basis.
(cj) In the event that If: (i) any changes in law or the applicable interpretations of Company and the staff of the Commission do Guarantors are not permit the Issuers permitted to effect consummate the Exchange Offer, (ii) for any reason Offer because the consummation of the Exchange Offer is not consummated within 180 days permitted by applicable law or Commission policy, or (ii) in the case of the Issue Date, (iiiA) any Holder (other than the Initial Purchasers) is prohibited not permitted by applicable law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating policy to participate in the Exchange Offer, (ivB) any Holder participating in the Exchange Offer that receives Exchange Notes that may not resell such Exchange Notes to the public without delivering a Prospectus and the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales or (C) any broker-dealer that holds Notes acquired directly from the Company or any of its affiliates and, in each such case contemplated by this clause (ii), such Holder notifies the Company prior to the 20th Business Day following consummation of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers Company and the Guarantors shall file a Shelf Registration Statement pursuant to Section 3 hereof(such obligation to file a Shelf Registration Statement, a “Shelf Filing Obligation”) and shall deliver notice thereof within five Business Days to the Holders (or in the case of an occurrence of any event described in clause (ii) of this Section 2(j), to any such Holder) and the Trustee.
Appears in 1 contract
Sources: Registration Rights Agreement (Lantheus Medical Imaging, Inc.)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the The Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) within 30 days after the Issue Date with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act within 90 days after the Issue Date and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 120 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company Issuers will offer the Exchange Notes in exchange for surrender of the Notes. The Company Issuers shall keep the Exchange Offer open for not less than 20 Business Days business days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company Issuers in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer Act or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iviii) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and Notes, (viv) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange NotesNotes and (v) such Holder has full power and authority to transfer the Notes in exchange for the Exchange Notes and that the Issuers will acquire good and unencumbered title thereto free and clear of any liens, restrictions, charges or encumbrances and not subject to any adverse claims.
(b) The Company Issuers and the Initial Purchasers Purchaser acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuers and the Initial Purchasers Purchaser also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their commercially reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up not to 210 exceed 180 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company Issuers in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company Issuers shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, the Initial Purchaser or any Holder Holder, as the case may be, holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company Issuers upon the request of the Initial Purchaser or any such Holder Holder, as the case may be, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchaser or any such Holder, as the case may be, in exchange (the “Private Exchange”) for such Notes held by the Initial Purchaser or any such Holder, as the case may be, a like principal amount of notes (the “Private Exchange Notes”) of the Company Issuers that are identical in all material respects to the Exchange NotesNotes except that the Private Exchange Notes may be subject to restrictions on transfer and bear a legend to such effect. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. For each Note surrendered in the Exchange Offer, the Holder will receive an Exchange Note having a principal amount equal to that of the surrendered Note. Interest on each Exchange Note and Private Exchange Note issued pursuant to the Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the Issue Date. Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuers shall have no further registration obligations, except as set forth in Section (c) hereof. In connection with the Exchange Offer, the Company Issuers shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company Issuers shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn by the Holders pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each such Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Registrable Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue DateHolder, (iii) any Holder (other than the Initial Purchasers) Purchaser, is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder Offer or does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), the Issuers within the meaning of the Securities Act) or (viii) the Initial Purchasers Purchaser so request requests with respect to Notes or Private Exchange Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (viiii) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Holly Energy Partners Lp)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the The Issuers shall (i) file a Registration Statement (the “"Exchange Offer Registration Statement”") within 90 days after the Issue Date with the Commission on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “"Exchange Notes”") that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages Additional Interest upon a Registration Default), (ii) use their commercially reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act within 150 days after the Issue Date and (iii) use their commercially reasonable best efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will promptly offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business 30 Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company in writing that at the time of the consummation of the Exchange Offer (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities ActAct , (iii) it is not an affiliate (of the Issuer, as defined in Rule by rule 405 under of the Securities Act) of any Issuer or, or if it is an affiliateaffiliate of the Issuer, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and Notes, (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange NotesNotes and (vi) such Holder has full power and authority to transfer the Notes in exchange for the Exchange Notes and that the Company will acquire good and unencumbered title thereto free and clear of any liens, restrictions, charges or encumbrances and not subject to any adverse claims.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “"Participating Broker-Dealer”") may be deemed to be an “"underwriter” " within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “"Requesting Participating Broker-Dealer”"), the Issuers agree to use their commercially reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up not to 210 exceed 180 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof (such period, the “"Applicable Period”"), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds the Initial Purchasers hold any Notes acquired by it them that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of the Initial Purchasers or any such Holder Holder, as the case may be, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasers or any such Holder, as the case may be, in exchange (the “"Private Exchange”") for such Notes held by the Initial Purchasers or any such Holder, as the case may be, a like principal amount of notes (the “"Private Exchange Notes”") of the Company that are identical in all material respects to the Exchange NotesNotes except that the Private Exchange Notes may be subject to restrictions on transfer and bear a legend to such effect; provided, however, that the Issuers shall not be required to effect a Private Exchange if in the written opinion of counsel for the Issuers or counsel for the Initial Purchasers (copies of which are delivered to the Initial Purchasers or Holder whose request is the subject of such opinions) such Private Exchange cannot be effected without registration under the Securities Act. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuers shall have no further registration obligations other than the Issuers' continuing registration obligations with respect to (i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which clause (c)(iv) of this Section 2 applies. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn by the Holders pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each such Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Registrable Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers Company and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem Company deems necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in any applicable law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (Holder, other than the an Initial Purchasers) Purchaser, is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that who participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), Issuer within the meaning of the Securities Act) or (v) the Initial Purchasers so request with respect to Notes or Private Exchange Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (viv) of this sentence, a “"Shelf Filing Event”"), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless To the extent not prohibited by applicable law or interpretation of the Staff of the SEC, the Company shall use its reasonable best efforts to file with the SEC a Registration Statement relating to the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being have declared effective by the Commission, SEC such Registration Statement no later than on or prior to the Company will Effective Date. The offer and sale of the Exchange Notes in exchange for surrender of the Notes. The Company shall keep pursuant to the Exchange Offer open for not less than 20 Business Days (shall be registered pursuant to the Securities Act on the appropriate form and duly registered or longer if required by qualified under all applicable law) after the date notice state securities or Blue Sky laws and will comply with all applicable tender offer rules and regulations of the Exchange Act and state securities or Blue Sky laws. The Exchange Offer is mailed shall not be subject to Holdersany condition, other than that the Exchange Offer does not violate any applicable law or interpretation of the Staff of the SEC. Each No securities shall be included in the Registration Statement covering the Exchange Offer other than the Notes and the Exchange Notes.
(b) The Company may require each Holder that participates of Transfer Restricted Securities as a condition to its participation in the Exchange Offer will be required to represent to the Company and its counsel in writing (which may be contained in the applicable letter of transmittal) that at the time of the consummation of the Exchange Offer (i) any Exchange Notes to be received by it such holder will be acquired in the ordinary course of its business, (ii) it has such holder will have no arrangement or understanding with any Person person to participate in the distribution (of the Notes or the Exchange Notes within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under if the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder holder is not a broker-dealerdealer or is a broker-dealer but will not receive Exchange Notes for its own account in exchange for Notes, it neither the holder nor any such other person is not engaged in, and does not intend in or intends to engage in, participate in a distribution of the Exchange Notes and (viv) if that such holder is not an Affiliate of the Company. If the Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes, it will represent that the Notes that to be exchanged for the Exchange Notes were acquired by it as a result of market-making activities or other trading activities, and acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any re-sale resale of such Exchange Notes. It is understood that by acknowledging that it will deliver and by delivering a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Notes, the Holder is not admitting that it is an "underwriter" within the meaning of the Act.
(bc) Unless the Exchange Offer would not be permitted by any applicable law or interpretation of the Staff of the SEC, the Company shall commence the Exchange Offer (within the time periods set forth herein) by mailing the related Exchange Offer Prospectus and appropriate accompanying documents to each Holder of Transfer Restricted Securities providing, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Notes validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (the "Exchange Date"), which date shall in no event be later than the Consummation Date;
(iii) that Holders of Transfer Restricted Securities electing to have a Note exchanged pursuant to the Exchange Offer will be required to sur render such Note or $1,000 integral multiple portion thereof, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the Exchange Date; and
(iv) that Holders of Transfer Restricted Securities that do not tender all such securities pursuant to the Exchange Offer will no longer have any registration rights hereunder with respect to securities not tendered. Promptly after the Exchange Date, the Company shall:
(i) accept for exchange all Notes or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Notes or portions thereof so accepted for exchange by the Company, and issue, or cause the Trustee under the Indenture to authenticate and mail to each holder, an Exchange Note equal in principal amount to the principal amount of the Notes surrendered by such holder.
(d) The Company and the Initial Purchasers acknowledge each Purchaser acknowledges that the staff Staff of the Commission SEC has taken the position that any broker-dealer that elects to exchange owns Exchange Notes that were acquired received by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “"Participating Broker-Dealer”") may be deemed to be an “"underwriter” " within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering placement of the Notes). The Company and each Purchaser also acknowledges that it is the Initial Purchasers also acknowledge that the staff of the Commission has taken the SEC Staff's position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoingabove, if notwithstanding the other provisions of this Agreement, the Company agrees that the provisions of this Agreement as they relate to a Shelf Registration shall also apply to an Exchange Offer to the extent, and with such reasonable modifications thereto as may be reasonably requested by any Participating Broker-Dealer or the Company, in each case as provid ed in clause (ii) below, as appropriate to expedite or facilitate the disposition of any Exchange Notes by Participating Broker-Dealers consistent with the positions of the Staff recited in this Section 2(d); provided that: -------- ----
(i) the Company shall not be required to amend or supplement the Prospectus contained in the Registration Statement, as would otherwise be contemplated by this Agreement, for a period exceeding 90 days after the Consummation Date (as such period may be extended pursuant to the terms of this Agreement relating to a Shelf Registration) and Participating Broker- Dealers shall not be authorized by the Company to deliver and shall not deliver such Prospectus after such period in connection with the resales contemplated by this Section 2(d); and
(ii) the application of the Shelf Registration procedures set forth in this Section 2(d) of this Agreement to an Exchange Offer, to the extent not otherwise required by the positions of the Staff of the SEC or the Securities Act, will be in conformity with the reasonable request to the Company by anyone who certifies to the Company in writing in a reasonably timely manner that they anticipate that they will be a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”); and provided, further, that in connection with such -------- -------- application of the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Shelf Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements procedures set forth in the preceding paragraph. If, prior Section 3 to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant obliged (x) to deal only with one entity representing the same indenture Participating Broker-Dealers, which shall be DLJ unless it elects not to act as such representative, (y) to pay the Exchange Notes fees and bear expenses of only one counsel representing the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
Participating Broker- Dealers and (1z) mail or to cause to be mailed delivered, if requested, customary "cold comfort" letters with respect to each Holder entitled to participate the Prospectus in the Exchange Offer a copy of the Prospectus forming part of form existing on the Exchange Offer Registration Statement, together Date and with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders respect to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchangesubsequent amendment or supplement, if any, effected during the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation period specified in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that clause (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, above.
(iie) no action or proceeding The Purchasers shall have been instituted or threatened in no liability to any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding person with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement made pursuant to Section 3 hereof2(d).
Appears in 1 contract
Sources: Registration Rights Agreement (Price Communications Wireless Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers shall (i) file a Registration Statement (the “"Exchange Offer Registration Statement”") within 210 days after the Issue Date with the Commission on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “"Exchange Notes”") that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain restrictive legends, terms with respect to transfer restrictions or Liquidated Damages Additional Interest upon a Registration Default), (ii) use their commercially reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act within 270 days after the Issue Date and (iii) use their commercially reasonable best efforts to consummate the Exchange Offer within 180 310 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company Issuers will offer the Exchange Notes in exchange for surrender of the Notes. The Company Issuers shall keep the Exchange Offer open for not less than 20 Business Days 30 days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company Issuers in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (of the Company, the Co-Issuer or any Guarantor as defined in by Rule 405 under of the Securities Act) of any Issuer or, or if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and Notes, (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange Notes, and (vi) such Holder has full power and authority to transfer the Notes in exchange for the Exchange Notes and that the Issuers will acquire good and unencumbered title thereto (other than restrictions on transfer imposed by applicable law) and not subject to any adverse claims.
(b) The Company Issuers and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “"Participating Broker-Dealer”") may be deemed to be an “"underwriter” " within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuers and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange change Offer Registration Statement continuously effective for a period of up necessary to 210 comply with applicable law in connection with such resales but in no event more than 180 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to any Delay Period in accordance with the penultimate last paragraph of Section 5 hereof (such period, the “"Applicable Period”"), or such earlier date as all each Requesting Participating Broker-Dealers Dealer shall have notified the Company in writing that such Requesting Participating Broker-Dealers have Dealer has resold all Exchange Notes acquired by it in the Exchange Offer. The Company Issuers shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, the Initial Purchasers or any Holder Holder, as the case may be, holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company Issuers upon the request of the Initial Purchasers or any such Holder Holder, as the case may be, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasers or any such Holder, as the case may be, in exchange (the “"Private Exchange”") for such Notes held by the Initial Purchasers or any such Holder, as the case may be, a like principal amount of notes (the “"Private Exchange Notes”") of the Company Issuers that are identical in all material respects to the Exchange NotesNotes except that the Private Exchange Notes may be subject to restrictions on transfer and bear a legend to such effect. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes (if permitted by the CUSIP Service Bureau). Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuers shall have no further registration obligations other than the Issuers' continuing registration obligations with respect to (i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which clause (c)(iv) of this Section 2 applies. In connection with the Exchange Offer, the Company Issuers shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn by the Holders pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each such Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Registrable Notes of such Holder so accepted for exchange; provided, however, that in the case of any Registrable Notes held in global form by a depository, authentication and delivery to such depository of one or more Exchange Notes or Private Exchange Notes in global form in such amount shall satisfy such requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem Company deems necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 310 days of the Issue Date, (iii) any Holder (Holder, other than an Initial Purchaser, notifies the Initial Purchasers) Company prior to the 30th day following consummation of the Exchange Offer that it is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that who participates in the Exchange Offeroffer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), Issuer within the meaning of the Securities Act) or (v) the Initial Purchasers so request with respect to Notes or Private Exchange Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (viv) of this sentence, a “"Shelf Filing Event”"), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Norcraft Companies Lp)
Exchange Offer. (a) Unless To the Exchange Offer would violate extent not prohibited by applicable law or any applicable interpretation of the staff of the CommissionDivision of Corporation Finance of the SEC, the Issuers Company shall (i) file with the SEC, no later than the Filing Date, a Registration Statement (the “Exchange Offer Registration Statement”"EXCHANGE OFFER REGISTRATION STATEMENT") with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”"EXCHANGE OFFER") to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, "EXCHANGE NOTES") of the “Exchange Notes”) Company that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms no restrictive legend thereon. The Exchange Offer shall comply with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Company shall use their commercially reasonable its best efforts to (x) cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and on or before the Effectiveness Date; (iiiy) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days at least 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law); and (z) consummate the Exchange Offer on or prior to the 195th day following the Issue Date. If, after the date notice Exchange Offer Registration Statement is initially declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Notes thereunder is interfered with by any stop order injunction or other order or requirement of the SEC or any other governmental agency or court, the Exchange Offer is mailed Registration Statement shall be deemed not to Holdershave become effective for purposes of this Agreement. Each Holder that participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has 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 (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it such Holder is not an affiliate (as defined in Rule 405 under of the Company within the meaning of the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it such Holder is not engaged in, and does not intend to engage in, a the distribution of Exchange Notes Notes, and (v) if such Holder is a broker-dealer (a "PARTICIPATING BROKER-DEALER") that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it such Holder will deliver a prospectus in connection with any re-sale resale of such Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and other than in respect of any Exchange Note as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Note shall be included in the Exchange Offer Registration Statement.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” shall include within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan section entitled "Plan of distribution containing Distribution," reasonably acceptable to the Holders, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such Participating Broker-Dealer in the Exchange Offer, whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such "Plan of Distribution" section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement to the above effect and describing the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection compliance with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to The Company shall use their reasonable its best efforts to keep the Exchange Offer Registration Statement continuously effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for a such period of up time as is necessary to 210 comply with applicable law in connection with any resale of the Exchange Notes covered thereby; PROVIDED, HOWEVER, that such period shall not exceed 180 days after the date on which the such Exchange Offer Registration Statement is declared effective, effective (or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof hereof) (such period, the “Applicable Period”"APPLICABLE PERIOD"), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds the Initial Purchasers hold any Notes acquired by it them that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”"PRIVATE EXCHANGE") for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”"PRIVATE EXCHANGE NOTES") of the Company that are identical in all material respects to the Exchange NotesNotes (except that they may bear a customary legend with respect to restrictions on transfer). The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. Interest on the Exchange Notes and the Private Exchange Notes will accrue (A) from the later of (i) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor, or (ii) if the Notes are surrendered for exchange on a date subsequent to the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment, or (B) if no interest has been paid on the Notes, from the Issue Date. In connection with the Exchange Offer, the Company shall:
(1) mail mail, or cause to be mailed mailed, to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary depository for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(34) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day business day on which the Exchange Offer shall remain open; and
(45) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the CommissionSEC, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers Company and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem Company deems necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that If, (i) because of any changes change in law or the applicable in currently prevailing interpretations of the staff of the Commission do SEC, the Company is not permit the Issuers permitted to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 195 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law Purchasers or any holder of Private Exchange Notes so request in writing to the applicable interpretations Company at any time after the consummation of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder Holder as an affiliate the Company within the meaning of any Issuerthe Securities Act), (v) in the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status case of unsold allotments in an initial distribution or (vi) any Holder each of Private Exchange Notes so requests (each such event referred to in clauses (i) through to and including (viiv) of this sentence, a “Shelf Filing Event”), then the Issuers Company shall file (x) promptly deliver to the Holders and the Trustee written notice thereof (the "SHELF NOTICE") and (y) at its sole expense, as promptly as practicable, comply with the requirements for a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless To the Exchange Offer would violate extent not prohibited by any applicable law or any applicable interpretation of the staff of the CommissionSEC, the Issuers shall (iA) prepare and, on or prior to 60 days after the date of original issuance of the Notes (the "Issue Date"), file with the SEC a Registration Statement (under the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form Securities Act with respect to a registered an offer (by the “Exchange Offer”) Company to exchange any and all the holders of the Registrable Notes to issue and deliver to such holders, in exchange for Notes, a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (iiB) use their commercially reasonable best efforts to cause the Registration Statement relating to the Exchange Offer Registration Statement to be declared effective by the SEC under the Securities Act and (iii) use their commercially reasonable efforts on or prior to consummate the Exchange Offer within 180 days after the Issue Date. Upon , and (C) commence the Exchange Offer Registration Statement being declared effective by and use their best efforts to issue, on or prior to the CommissionConsummation Date, the Company will Exchange Notes. The offer and sale of the Exchange Notes in exchange for surrender of the Notes. The Company shall keep pursuant to the Exchange Offer open for shall be registered pursuant to the Securities Act on the appropriate form (the "Exchange Registration Statement") and duly registered or qualified under all applicable state securities or Blue Sky laws and will comply with all applicable tender offer rules and regulations under the Exchange Act and state securities or Blue Sky laws. The Exchange Offer shall not less be subject to any condition, other than 20 Business Days (that the Exchange Offer does not violate any applicable law or longer if required by applicable law) after interpretation of the date notice staff of the SEC. Upon consummation of the Exchange Offer is mailed in accordance with this Section 2, the Issuers shall have no further registration obligations other than with respect to Holders(i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which Section 3(a)(iii) hereof applies. Each Holder that participates No securities shall be included in the Exchange Registration Statement other than the Exchange Notes.
(b) The Issuers may require each holder of Notes as a condition to its participation in the Exchange Offer will be required to represent to the Company Issuers and their counsel in writing (which may be contained in the applicable letter of transmittal) that at the time of the consummation of the Exchange Offer (i) any Exchange Notes to be received by it such holder will be acquired in the ordinary course of its business, (ii) it has such holder will have no arrangement or understanding with any Person person to participate in the distribution (within the meaning mean- ing of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, and (iii) it such holder is not an affiliate (as defined in Rule 405 under the Securities Act) Affiliate of any Issuer oran Issuer, or if it is an affiliateAffiliate of an Issuer, it will comply with the registration and prospectus delivery requirements of the Securities Act Act, to the extent applicable.
(c) If, (iv) if such Holder prior to consummation of the Exchange Offer, the Initial Purchaser holds any Notes acquired by it and having, or which are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, or any other holder of Notes is not a broker-dealerentitled to participate in the Exchange Offer, it is not engaged inthe Company upon the request of the Initial Purchaser or any such holder shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and does not intend deliver to engage inthe Initial Purchaser and any such holder, in exchange (the "Private Exchange") for such Notes held by the Initial Purchaser and any such holder, a distribution like principal amount of debt securities of the Company, guaranteed by each of the Guarantors on a senior unsecured basis, that are identical in all material respects to the Exchange Notes (the "Private Exchange Notes") (and (v) if such Holder is a broker-dealer that will receive which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes for its own account in exchange for Notes that were acquired shall bear the same CUSIP number as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such the Exchange Notes.
(bd) Unless the Exchange Offer would not be permitted by any applicable law or interpretation of the staff of the SEC, the Company shall mail the Exchange Offer Prospectus and appropriate accompanying documents, including appropriate letters of transmittal, to each holder of Notes providing, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Notes validly tendered will be accepted for exchange;
(ii) the date of acceptance for exchange (the "Exchange Date"), which date shall in no event be later than the Consummation Date (unless otherwise required by applicable law);
(iii) that holders of Notes electing to have a Note exchanged pursuant to the Exchange Offer will be required to surrender such Note, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the Exchange Date; and
(iv) that holders of Notes that do not tender all such securities pursuant to the Exchange Offer may no longer have any registration rights hereunder with respect to Notes not tendered. Promptly after the Exchange Date, the Company shall:
(i) accept for exchange all Notes or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer or the Private Exchange; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Notes or portions thereof so accepted for exchange by the Company, and issue, cause the Trustee under the Indenture (or the indenture pursuant to which the Exchange Notes are issued) to authenticate, and mail to each holder of Notes, Exchange Notes equal in principal amount to the principal amount of the Notes surrendered by such holder.
(e) The Company Issuers and the Initial Purchasers Purchaser acknowledge that the staff of the Commission SEC has taken the position that any broker-dealer that elects to exchange owns Exchange Notes that were acquired received by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “"Participating Broker-Dealer”") may be deemed to be an “"underwriter” " within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuers and the Initial Purchasers Purchaser also acknowledge that it is the staff of the Commission has taken the SEC staff's position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree (x) to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), 6 months or such earlier date as all Requesting each Participating Broker-Dealers Dealer shall have notified the Company in writing that such Requesting Participating Broker-Dealers have Dealer has resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior (y) to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously comply with the delivery provisions of the Exchange Notes in the Exchange OfferSection 5 of this Agreement, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant they relate to the Exchange Offer and the Private Exchange;Exchange Registration Statement, and (z) to deliver to such Participating Broker-Dealer a "cold comfort" letter of the independent public accountants of the Issuers and a legal opinion as to matters reasonably requested by such Participating Broker-Dealer relating to the Exchange Registration Statement and the related Prospectus and any amendments or supplements thereto.
(2f) deliver or cause The Initial Purchaser shall have no liability to be delivered any Participating Broker-Dealer with respect to the Trustee for cancellation in accordance with any request made pursuant to Section 5(t) all Notes so accepted for exchange; and2(e).
(3g) cause Interest on the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditionsNotes will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, other than that (i) if no interest has been paid on the Exchange Offer or Private ExchangeNotes, as from the case may be, does not violate applicable law or any applicable interpretation date of the staff original issuance of the Commission, Notes.
(iih) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall may be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (Indenture, which in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and event shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of neither the Exchange Notes, the Private Exchange Notes or nor the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless To the Exchange Offer would violate extent not prohibited by applicable law or any applicable interpretation of the staff of the CommissionDivision of Corporation Finance of the SEC, the Issuers shall (i) file with the SEC, no later than the Filing Date, a Registration Statement (the “"Exchange Offer Registration Statement”") with the Commission on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “"Exchange Notes”") of Phoenix, guaranteed by the Guarantors, that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms no restrictive legend thereon. The Exchange Offer shall comply with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall use their commercially reasonable efforts to (x) cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and on or before the Effectiveness Date; (iiiy) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than at least 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 180th day after the Issue Date. If, after the Exchange Offer Registration Statement is initially declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Notes thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, the Exchange Offer Registration Statement shall be deemed not to have become effective for purposes of this Agreement. Each Holder that participates in the Exchange Offer will be required to represent to the Company Issuers in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has 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 (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions pro- visions of the Securities Act, (iii) it and that such Holder is not an affiliate (as defined in Rule 405 under of the Issuers within the meaning of the Securities Act) of any Issuer Act or, if it such Holder is such an affiliate, that it will comply with the registration and prospectus delivery requirements of the Securities Act applicable to the extent applicableit, (iv) that if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes Notes, and (v) that if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Issuers shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and other than in respect of any Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” Issuers shall include within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan section entitled "Plan of distribution containing Distribution," reasonably acceptable to the Holders, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer or any other Person with similar prospectus delivery requirements for use in connection with any resale of Exchange Notes (a "Participating Broker-Dealer"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such "Plan of Distribution" section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement to the above effect and describing the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection compliance with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the The Issuers agree to shall use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for a such period of up time as is necessary to 210 comply with applicable law in connection with any resale of the Exchange Notes covered thereby; provided, however, that such period shall not exceed 180 days after the date on which the such Exchange Offer Registration Statement is declared effective, effective (or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof (such period, the “Applicable Period”hereof), or such earlier date as all Requesting each Participating Broker-Dealers Dealer shall have notified the Company in writing that such Requesting Participating Broker-Dealers have Dealer has resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets (the requirements set forth in the preceding paragraph"Applicable Period"). If, prior to consummation of the Exchange Offer, any Holder Initial Purchaser holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company Issuers upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “"Private Exchange”") for such Notes held by any such Holder, a like principal amount of notes (the “"Private Exchange Notes”") of Phoenix, guaranteed by the Company Guarantors, that are identical in all material respects to the Exchange NotesNotes (except that they may bear a customary legend with respect to restrictions on transfer). The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. Interest on the Exchange Notes and the Private Exchange Notes will accrue from (A) the later of (i) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or (ii) if the Notes are surrendered for exchange on a date subsequent to the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment or (B) if no interest has been paid on the Notes, from the date of the original issuance of the Notes. In connection with the Exchange Offer, the Company Issuers shall:
(1) mail mail, or cause to be mailed mailed, to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) keep the Exchange Offer open for not less than 20 Business Days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(34) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; provided, however, that withdrawal rights may be terminated upon any extension of the Exchange Offer; and
(45) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company Issuers shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the CommissionSEC, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers Issuers, and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that If (i) because of any changes change in law or the applicable in currently prevailing interpretations of the staff of the Commission do not permit SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law Purchasers or any holder of Private Exchange Notes so requests in writing to the applicable interpretations Issuers at any time after the consummation of the staff of the Commission Exchange Offer with respect to Private Exchange Notes that are not eligible for resale without restriction under federal securities laws, or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder Holder as an affiliate of any Issuer)of the Issuers within the meaning of the Securities Act) and so notifies the Issuers within 30 days after such Holder first becomes aware of such restrictions, (v) in the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status case of unsold allotments in an initial distribution or (vi) any Holder each of Private Exchange Notes so requests (each such event referred to in clauses (i) through to and including (viiv) of this sentence, a “Shelf Filing Event”), then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the "Shelf Notice") and shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the The Issuers shall (i) file with the SEC, no later than the Filing Date, a Registration Statement (the “"Exchange Offer Registration Statement”") with the Commission on ------------------------------------- an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes for a like -------------- aggregate principal amount of notes (including the guarantees with respect thereto, the “"Exchange Notes”") of the Issuers that -------------- are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms no restrictive legend thereon. The Exchange Offer shall comply with respect to transfer restrictions or Liquidated Damages upon a Registration Default)all applicable tender offer rules and regulations under the Exchange Act and other applicable laws, (ii) including state "Blue Sky" laws. The Issuers shall use their commercially reasonable best efforts (x) to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and on or before the Effectiveness Date; (iiiy) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) to consummate the Exchange Offer on or prior to the 30th day following the date on which the Exchange Offer Registration Statement is declared effective by the SEC. If, after the Exchange Offer Registration Statement is initially declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Notes thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, the Exchange Offer Registration Statement shall be deemed not to have become effective for purposes of this Agreement. Each Holder that participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has 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 (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it and that such Holder is not an affiliate (as defined in Rule 405 under of the Issuers within the meaning of the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements . Upon consummation of the Securities Act Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to the extent applicableapply, (ivsolely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) if such Holder is not a brokerapplicable and Exchange Notes held by Participating Broker-dealer, it is not engaged inDealers, and does not intend the Issuers shall have no further obligation to engage in, a distribution of register Registrable Notes (other than Private Exchange Notes and (v) if such Holder is a broker-dealer that will receive other than in respect of any Exchange Notes for its own account as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes and the guarantees of the Guarantors with respect thereto shall be included in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such the Exchange NotesOffer Registration Statement.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” Issuers shall include within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan section entitled "Plan of distribution containing Distribution," reasonably acceptable to the Initial Purchaser, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a "Participating ------------- Broker-Dealer"), whether such positions or policies have been publicly ------------- disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such "Plan of Distribution" section shall include all information with respect to the sale of Exchange Notes by Participating Broker-Dealers that the SEC may require in order to permit such sales pursuant thereto, but such "Plan of Distribution" shall not name any such Participating Broker-Dealer or disclose the amount of Notes held by any such Participating Broker-Dealer except to the extent required by the SEC. Such "Plan of Distribution" section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement to the above effect and describing the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection compliance with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the The Issuers agree to shall use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for a such period of up time as is necessary to 210 comply with applicable law in connection with any resale of the Exchange Notes covered thereby; provided, -------- however, that such period shall not exceed 180 days after the date on which the such Exchange Offer ------- Registration Statement is declared effective, effective (or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof hereof) (such period, the “"Applicable Period”"), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. ----------------- If, prior to consummation of the Exchange Offer, any Holder the Initial Purchaser holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company Issuers upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “"Private Exchange”") for such Notes held by any ---------------- such Holder, a like principal amount of notes (the “"Private Exchange Notes”") of ---------------------- the Company Issuers that are identical in all material respects to the Exchange NotesNotes (except that they may bear a customary legend with respect to restrictions on transfer). The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. Interest on the Exchange Notes and the Private Exchange Notes will accrue from (A) the later of (i) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or (ii) if the Notes are surrendered for exchange on a date subsequent to the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment or (B) if no interest has been paid on the Notes, from the date of the original issuance of the Notes. In connection with the Exchange Offer, the Company Issuers shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Everest One Ipa Inc)
Exchange Offer. The Company s▇▇▇▇, ▇▇r the benefit of the Holders, at the Company's cost, use its reasonable commercial efforts (aA) Unless to file with the SEC the Exchange Offer would violate applicable law or any applicable interpretation Registration Statement not later than 180 days following the original issuance of the staff of the Commission, the Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form Securities with respect to a registered offer (proposed Exchange Offer and the “Exchange Offer”) issuance and delivery to the Holders, in exchange any and all of for the Registrable Notes for Securities, of a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default)Securities, (iiB) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act and within 270 days of the original issuance of the Securities, (iiiC) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon keep the Exchange Offer Registration Statement being declared effective by until the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice closing of the Exchange Offer is mailed to Holders. Each Holder that participates in and (D) unless the Exchange Offer would not be permitted by applicable law or SEC policy, to cause the Exchange Offer to be consummated within 315 days following the original issuance of the Securities. The Exchange Securities will be required to represent to issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Company in writing shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities for Exchange Securities (assuming that such Holder (iA) any is not an affiliate of the Company within the meaning of Rule 405 under the 1933 Act (an "Affiliate"), (B) is not a broker-dealer tendering Registrable Securities acquired directly from the Company or one of its Affiliates for its own account, (C) acquired the Exchange Notes to be received by it will be acquired Securities in the ordinary course of its business, such Holder's business and (iiD) it at the time of the consummation of the Exchange Offer has no arrangement arrangements or understanding understandings with any Person to participate in the distribution (within Exchange Offer for the meaning purpose of distributing the Exchange Securities) to transfer such Exchange Securities from and after their receipt without any limitations or restrictions under the 1933 Act and without material restrictions under the securities laws of a substantial portion of the Securities Act) several states of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange NotesUnited States. In connection with the Exchange Offer, the Company shallwill:
(1A) as promptly as practicable after the Exchange Offer Registration Statement has been declared effective by the SEC, mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2B) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the "Exchange Period");
(C) utilize the services of a depositary the Depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkOffer;
(3D) notify each Holder that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address and in the manner specified in the notice prior to 5:00 p.m. (Eastern Time) on the last Business Day of the Exchange Period;
(E) permit Holders to (i) withdraw tendered Notes Registrable Securities at any time prior to 5:00 p.m., New York time, p.m. (Eastern Time) on the last Business Day on which business day of the Exchange Offer shall Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing such Holder's election to have such Securities exchanged and (ii) tender Registrable Securities according to customary guaranteed delivery procedures if such Holder cannot deliver such Registrable Securities or complete the procedures relating thereto on a timely basis prior to 5:00 p.m. (Eastern Time) on the last business day of the Exchange Period;
(F) notify each Holder that any Registrable Security not tendered will remain openoutstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker Dealers as provided herein); and
(4G) otherwise comply in all material respects with all applicable laws, rules and regulationslaws relating to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1A) accept for exchange all Notes validly Registrable Securities duly tendered and not validly withdrawn pursuant to the Exchange Offer in accordance with the terms of the Exchange Offer Registration Statement and the Private Exchangeletter of transmittal which shall be an exhibit thereto;
(2B) deliver or cause to be delivered all Registrable Securities accepted for exchange to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchangecancellation; and
(3C) cause the Trustee promptly to authenticate and deliver promptly Exchange Securities, to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal Registrable Securities so accepted for exchange in a principal amount equal to the Notes principal amount of the Registrable Securities of such Holder so accepted for exchange. Interest on each Exchange Security will accrue from the last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of original issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (A) that (i) the Exchange Offer Offer, or Private Exchange, as the case may bemaking of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the CommissionSEC, (B) the valid tendering of Registrable Securities in accordance with the Exchange Offer, (C) that each Holder of Registrable Securities exchanged in the Exchange Offer shall have represented that (i) it is not an affiliate of the Company within the meaning of Rule 405 under the 1933 Act, (ii) it is not a broker-dealer tendering Registrable Securities acquired directly from the Company or one of its Affiliates for its own account, (iii) all of the Exchange Securities to be received by it shall be acquired in the ordinary course of its business and (iv) at the time of the consummation of the Exchange Offer it shall have no arrangement or understanding with any Person to participate in the distribution (within the meaning of the 1933 Act) of the Exchange Securities, and shall have made such othe▇ ▇▇▇▇▇▇entations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form S-4 or other appropriate form under the 1933 Act available and (D) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency which might materially with respect to the Exchange Offer which, in the Company's judgment, would reasonably be expected to impair the ability of the Issuers Company to proceed with the Exchange Offer. The Company shall use its reasonable commercial efforts to inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer or the Private Exchangeis made, and no material adverse development the Initial Purchasers shall have occurred the right, subject to applicable securities laws, to contact such Holders and otherwise facilitate the tender of Registrable Securities in any existing action or proceeding with respect the Exchange Offer. The Company shall use its reasonable commercial efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all persons subject to the Issuers prospectus delivery requirements of the 1933 Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided, however, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by a Participating Broker-Dealer, such period shall terminate at the earlier to occur of (i) the expiration of 180 days following the Exchange Offer and (iiiii) all governmental approvals the Expiration Date. The Company shall have been obtained, which approvals not be obligated to keep the Issuers (based upon advice Exchange Offer Registration Statement effective or to permit the use of counsel) deem necessary for the consummation any Prospectus forming a part of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under Registration Statement if (i) the Indenture Company determines, in its reasonable judgment, upon advice of counsel that the continued effectiveness and use of the Exchange Offer Registration Statement would (x) require the disclosure of material information which the Company has a bona fide business reason for preserving as confidential or (y) interfere with any financing, acquisition, corporate reorganization or other material transaction involving the Company or any of its subsidiaries; and provided, further, that the failure to keep the Exchange Offer Registration Statement effective and usable for offers and sales of Registrable Securities for such reasons shall last no longer than 45 consecutive calendar days or no more than an aggregate of 90 calendar days during any consecutive twelve-month period (whereafter a Registration Default, as hereinafter defined, shall occur) and (ii) the Company promptly thereafter complies with the requirements of Section 3(L) hereof, if applicable; any such period during which the Company is excused from keeping the Exchange Offer Registration Statement effective and usable for offers and sales of Registrable Securities is referred to herein as a "Exchange Offer Suspension Period"; an Exchange Offer Suspension Period shall commence on and include the date that the Company gives notice to the Holders that the Exchange Offer Registration Statement is no longer effective or the Prospectus included therein is no longer usable for offers and sales of Registrable Securities as a result of the application of the proviso of the foregoing sentence, stating the reason therefor, and shall end on the earlier to occur of the date on which each seller of Registrable Securities covered by the Exchange Offer Registration Statement either receives the copies of the supplemented or amended Prospectus or is advised in writing by the Company that use of the Prospectus may be resumed. The Company acknowledges that pursuant to current interpretations by the SEC's staff of Section 5 of the 1933 Act, in the absence of applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Securities for Exchange Securities (an "Exchanging Dealer"), is required to deliver a prospectus containing information substantially in the form set forth in (a) Annex A hereto, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Exchange Offer and to include in the Letter of Transmittal delivered pursuant to the Exchange Offer, the information set forth in Annex D hereto and (ii) an indenture identical Initial Purchaser that elects to sell Exchange Securities acquired in all material respects an exchange for Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the Indenture (information required by Item 507 or Item 508 of Regulation S-K under the 1933 Act, as applicable, in either case, connection with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any mattersale.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Centerpoint Energy Inc)
Exchange Offer. (a) Unless To the Exchange Offer would violate extent permitted by applicable law or any applicable interpretation of the staff of the CommissionDivision of Corporation Finance of the SEC, the Issuers shall (i) file with the SEC, no later than the Filing Date, a Registration Statement (the “"Exchange Offer Registration Statement”") with the Commission on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “"Exchange Notes”") of the Issuers (the guarantees, if any, of the Subsidiary Guarantors) that are identical in all material respects to the Notes (except that the Exchange Notes (and the guarantees, if any, of the Subsidiary Guarantors) shall not contain terms no restrictive legend thereon. The Exchange Offer shall comply with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) all applicable tender offer rules and regulations under the Exchange Act and other applicable law. The Issuers shall use their commercially reasonable respective best efforts to (x) cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and on or before the Effectiveness Date; (iiiy) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 135th day following the date on which the Exchange Offer Registration Statement is declared effective by the SEC. If, after the Exchange Offer Registration Statement is initially declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Notes thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, the Exchange Offer Registration Statement shall be deemed not to have become effective for purposes of this Agreement. Each Holder that participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has 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 (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it and that such Holder is not an affiliate (as defined in Rule 405 under of any of the Issuers within the meaning of the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements . Upon consummation of the Securities Act Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to the extent applicableapply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers (iv) if such Holder is not a broker-dealer, it is not engaged inas defined), and does not intend the Issuers shall have no further obligation to engage in, a distribution of register Registrable Notes (other than Private Exchange Notes and (v) if such Holder is a broker-dealer that will receive other than in respect of any Exchange Notes for its own account as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such the Exchange NotesOffer Registration Statement.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” Issuers shall include within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan section entitled "Plan of distribution containing Distribution," reasonably acceptable to the Holders, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such "Plan of Distribution" section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement to the above effect and describing the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection compliance with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the The Issuers agree to shall use their reasonable respective best efforts to keep the Exchange Offer Registration Statement continuously effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for a such period of up time as is necessary to 210 comply with applicable law in connection with any resale of the Exchange Notes covered thereby; provided, however, that such period shall not exceed 180 days after the date on which the such Exchange Offer Registration Statement is declared effective, effective (or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof hereof) (such period, the “"Applicable Period”"), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company Issuers upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “"Private Exchange”") for such Notes held by any such Holder, a like principal amount of notes (the “"Private Exchange Notes”") of the Company Issuers that are identical in all material respects to the Exchange Notes and the Subsidiary Guarantors if any shall guarantee such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. Interest on the Exchange Notes and the Private Exchange Notes will accrue from (A) the later of (i) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or (ii) if the Notes are surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B) if no interest has been paid on the Notes, from the date of the original issuance of the Notes. In connection with the Exchange Offer, the Company Issuers shall:
(1) mail mail, or cause to be mailed mailed, to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(34) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day business day on which the Exchange Offer shall remain open; and
(45) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the CommissionSEC, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that If, (i) because of any changes change in law or the applicable in currently prevailing interpretations of the staff of the Commission do not permit SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 150 days of the Issue Date, (iii) any Holder (other than holder of Private Exchange Notes so requests in writing to the Initial Purchasers) is prohibited by law or Issuers within 60 days after the applicable interpretations consummation of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder Holder as an affiliate of any Issuer)of the Issuers within the meaning of the Securities Act) and so notifies the Issuers within 30 days after such Holder first becomes aware of such restrictions, (v) in the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status case of unsold allotments in an initial distribution or (vi) any Holder each of Private Exchange Notes so requests (each such event referred to in clauses (i) through to and including (viiv) of this sentence, a “Shelf Filing Event”), then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the "Shelf Notice") and shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Abraxas Petroleum Corp)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the The Issuers shall (i) file a Registration Statement with the SEC no later than the Filing Date an offer to exchange (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes (other than Private Exchange Notes, if any) for a like aggregate principal amount of notes debt securities of the Issuers which are identi cal in all respects to the Notes (including the guarantees with respect thereto, the “"Exchange Notes”") except that are the Exchange Notes (i) shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain neither restrictive legends nor any provisions requiring registration or payment of Liquidated Damages, (ii) shall be issued after the Issue Date and (iii) shall be designated the Issuers' Series B 9 1/2% Senior Subordinated Notes due 2007. The Exchange Notes shall be entitled to the benefits of the Indenture, or a trust indenture which is identical in all material respects to the Notes Indenture (except that other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC or to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA. The Exchange Offer shall be registered under the Securities Act on the appropriate form (the "Exchange Registration Statement") and shall comply with all applicable tender offer rules and regulations under the Exchange Notes Act and other applicable law. The Issuers shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable best efforts (x) to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts as soon as reasonably practicable in order to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall required date; (y) to keep the Exchange Offer open for not less than at least 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) to consummate the Exchange Offer prior to or on the 150th day following the Filing Date. Each Holder that who participates in the Exchange Offer will be required to represent to the Company in writing that (i) it will acquire any Exchange Notes pursuant to be received by it will be acquired the Exchange Offer in the ordinary course of its businessbusi ness, (ii) it that at the time of the consummation of the Exchange Offer such Holder is not engaged in, and does not intend to engage in, and has and will have no arrangement or understanding with any Person to participate in in, the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it and that such Holder is not an affiliate of any Obligor within the meaning of the Securities Act. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement (other than this Section 2) shall continue to apply, mutatis mutandis, solely with respect to any Registrable ---------------- Notes that are Private Exchange Notes and Exchange Notes held by Participating Broker-Dealers, and the Issuers shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and other than in respect of any Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be offered pursuant to the Exchange Registration Statement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Registration Statement a section entitled "Plan of Distribution," reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that acquired Notes as a result of market making activities or other trading activities (and not directly from the Issuers or the Guarantors) and is the beneficial owner (as defined in Rule 405 13d-3 under the Securities Exchange Act) of any Issuer orExchange Notes received by such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"), if it is an affiliatewhether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, it will comply with in the registration and judgment of the Initial Purchasers, represent the prevailing views of the staff of the SEC. Such "Plan of Distribution" section shall also expressly permit the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act to the extent applicableAct, (iv) if such Holder is not a broker-dealerincluding, it is not engaged inamong others, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “all Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act Dealers, and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing include a statement to the above effect and describing the means by which Participating Broker-Dealers may resell the Exchange Notes. The Issuers shall use their best efforts, without naming as described in Section 5(b)(ii) hereof, to keep the Participating Broker-Dealers or specifying Exchange Registration Statement effective and to amend and supplement the amount of Exchange Notes owned by them, Prospectus contained therein in order to permit such Prospectus may to be lawfully delivered by Participating Broker-Dealers all Persons subject to satisfy their the prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light Act for such period of time as is necessary to comply with applicable law in connection with any resale of the foregoingExchange Notes; provided, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”)however, the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a that such period of up to 210 shall not exceed 180 days -------- ------- after the date on which the Exchange Registration Statement is declared effective, effective (or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof hereof) (such period, the “"Applicable Period”"), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds the Initial Purchasers hold any Notes acquired by it that them which have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an the initial distribution, or if any other Holder is not entitled to participate in the Exchange OfferOffer because such Holder (i) is prohibited by law or SEC policy from participating in the Exchange Offer or (ii) may not resell the Exchange Notes acquired by it in the Exchange Offer to the public without delivering a prospectus and the Prospectus contained in the Exchange Registration Statement is not appropriate or available for such resales, the Company Issuer, upon the written request of either of the Initial Purchasers or any such Holder delivered at least ten (10) days prior to the consummation of the Exchange Offer, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, or in the case of any such request dated after the 10th day prior to the Exchange Offer, ten (10) days after the date of such request, issue and deliver to the Initial Purchasers and any such Holder, in exchange (the “"Private Exchange”") for such Notes held by the Initial Purchasers and any such Holder, a like principal amount of notes (the “Private Exchange Notes”) debt securities of the Company Issuers that are identical in all material respects to the Exchange Notes. The Notes (the "Private Exchange Notes shall be Notes") (and which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes and shall bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company Issuers shall:
(1i) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2ii) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3iii) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day business day on which the Exchange Offer shall remain open; and
(4iv) otherwise comply in all material respects with all applicable laws, rules and regulations, including all applicable Gaming Laws (as defined in the Indenture). As soon as practicable after the close of the Exchange Offer and or the Private Exchange, if anyas the case may be, the Company Issuer shall:
(1i) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and or the Private Exchange;
(2ii) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3iii) cause the Trustee to authenticate and deliver promptly to each Holder of NotesNotes which have been validly tendered and accepted for exchange, Exchange Notes or Private Exchange Notes, as the case may be, equal in a principal amount equal to the Notes principal amount of such Holder so accepted for exchangeNotes. The Neither the Exchange Offer and nor the Private Exchange shall not be subject to any conditions, other than except that (i) neither the Exchange Offer or nor the Private Exchange, as the case may be, does not shall, in the opinion of counsel to the Issuers and the Guarantors, violate any applicable law or any applicable interpretation of the staff of the CommissionSEC, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, Exchange and no material adverse development shall have occurred in any existing action or proceeding with respect to either Issuer or the Issuers and the Guarantors taken as a whole and (iii) all governmental approvals shall have been obtained, including from Gaming Authorities (as defined in the Indenture), which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange and (iv) no cessation of trading on Nasdaq or any exchange, nor any banking moratorium, shall have occurred, as a result of which the Issuers are unable to proceed with the Exchange Offer or the Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Exchange Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall for all purposes be treated as securities of a single class, and in particular vote and consent together on all matters exercise other consensual rights as one a single class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent exercise other consensual rights as a separate class on any matter.
(c) In the event that If, (i) because of any changes change in law or the applicable in currently prevailing interpretations of the staff of the Commission do not permit SEC, the Issuers are not permitted to effect the an Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 150 days of after the Issue Filing Date, (iii) Private Exchange Notes have been issued to any Initial Purchaser or Holder pursuant to Section 2(b) herein or (iv) any Holder (other than notifies the Initial Purchasers) is prohibited Issuers that it may not resell the Exchange Notes acquired by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating it in the Exchange Offer, (iv) in Offer to the case of any Holder that participates public without delivering a prospectus and the Prospectus contained in the Exchange OfferRegistration Statement is not appropriate or available for such resales, such Holder does not receive Exchange Notes on the date in any of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer)foregoing cases, (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall promptly deliver to the Holders and the Trustee written notice of such occurrence and the Issuers' resulting intention to file a Shelf Registration Statement (a "Shelf Notice") and shall thereupon file such Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Hollywood Park Inc/New/)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers shall (i) file a Registration Statement registration statement (the “"Exchange Offer Registration Statement”") with the Commission on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to, subject to the Holders that participate complying with the immediately following paragraph, exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “"Exchange Notes”") that have provisions that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain restrictive legends, terms with respect to transfer restrictions or Liquidated Damages Additional Interest upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 210 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company Issuers will offer the Exchange Notes in exchange for surrender of the Notes. The Company Issuers shall keep the Exchange Offer open for not less than 20 Business Days business days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company Issuers in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (of the Company or any Guarantor, as defined in by Rule 405 under of the Securities Act) of any Issuer or, or if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange Notes.
(b) The Company Issuers and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “"Participating Broker-Dealer”") may be deemed to be an “"underwriter” " within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuers and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Communications & Power Industries Inc)
Exchange Offer. (a) Unless Promptly following the Exchange Offer would violate applicable law or any applicable interpretation Effective Date, Elite shall prepare and disseminate to all holders of the staff of the Commissionits outstanding Class A Warrants expiring November 30, the Issuers shall (i) file a Registration Statement 2002 (the “Exchange Offer Registration Statement”"Old Warrants") with the Commission on an appropriate registration form with respect to a registered exchange offer (the “"Exchange Offer”") ------------ -------------- pursuant to which Elite shall offer to exchange any the Old Warrants for new warrants having the terms and all of conditions summarized below (the Registrable Notes "New Warrants") ------------ for a like aggregate principal amount price of notes $0.10 per share of Elite common stock (including the guarantees with respect thereto, the “"Common Stock") ------------ covered thereby. The Exchange Notes”) that are identical in all material respects Offer shall be made to the Notes (except that eligible warrantholders irrespective of whether the Exchange Notes Old Warrants shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of have expired when the Exchange Offer is mailed to Holdersconsummated. Each Holder that participates in the The Exchange Offer will shall be required to represent to open for 20 business days (or such longer period as the Company Board of Directors of Elite shall determine in writing that (iits sole discretion) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will and shall otherwise comply with the registration and prospectus delivery requirements of the Securities Act to of 1933, as amended (the extent applicable"Securities Act"), (iv) if such Holder is not a broker-dealer, it is not engaged in, the Exchange Act and does not intend to engage in, a distribution -------------- the rules and regulations of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notesthe Commission promulgated thereunder.
(b) The Company and New Warrants will (i) be exercisable for the Initial Purchasers acknowledge that same number of shares of Common Stock as the staff Old Warrants, (ii) have an exercise price of $5.00 per share (subject to appropriate adjustment in the event of any stock split, reverse stock split, stock dividend, recapitalization or reclassification occurring after the date hereof in respect of the Commission has taken Common Stock), (iii) expire on November 30, 2005 (the position "Expiration Date"), and (iv) --------------- except as set forth herein will have substantially all of the same other terms and conditions as the Old Warrants. The New Warrants shall provide that (i) if the Warrant Shares Registration Statement (as defined below) is not effective on any broker-dealer that elects day during the thirty (30) day period immediately prior to exchange Notes that were acquired by such broker-dealer for its own account as and including the Expiration Date (the "Thirty Day Period"), and (ii) Elite's Common Stock trades ----------------- at a result of market-making or other trading activities for Exchange Notes price greater than $5.00 (subject to appropriate adjustment in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within event of any stock split, reverse stock split, stock dividend, recapitalization or reclassification occurring after the meaning date hereof in respect of the Securities Act and must deliver a prospectus meeting Common Stock) on any trading day on which the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Warrant Shares Registration Statement includes a plan of distribution containing a statement is not effective during the Thirty Day Period, then the Expiration Date shall be extended to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days 30th day after the date on which the Exchange Warrant Shares Registration Statement is declared effective, or such longer period if extended pursuant again effective and available for the exercise of the New Warrants. Such provisions shall apply to any subsequent suspension of the Warrant Shares Registration Statement occurring prior to the penultimate paragraph of Section 5 hereof then-current Expiration Date.
(such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”c) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, promptly following the Company shall:Effective Date (but not later than forty five (45) days thereafter), Elite shall prepare and file with the Commission a registration statement on an appropriate form registering the New Warrants and the shares of Common Stock issuable upon exercise thereof (the "Registration Statement") and shall use ---------------------- commercially reasonable efforts to cause the Registration Statement to become effective, including to respond to all comments from the Commission and to file all amendments to the Registration Statement so required to respond to such comments. Except as otherwise provided below, Elite shall maintain the effectiveness of the Registration Statement until such time as the New Warrants are no longer outstanding (the "Effectiveness Termination Date"). In addition, ------------------------------ in connection with the Exchange Offer, Elite shall comply with applicable securities or "blue sky" laws; provided, however, that in no event shall Elite -------- ------- be obligated to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it would not otherwise be required to so qualify but for this subsection (c) or (ii) file any general consent to service of process in any jurisdiction where it is not as of the date hereof so subject.
(1d) mail Elite shall use commercially reasonable efforts to cause the Registration Statement to remain effective until the termination or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part expiration of the Exchange Offer Offer. Thereafter, Elite shall not be obligated to maintain the effectiveness of the Registration Statement with respect to the New Warrants. In addition, Elite shall not be required to maintain the effectiveness of the Registration Statement with respect to the shares of Common Stock issuable upon the exercise of the New Warrants (the "Warrant Shares") until the -------------- earlier to occur of (i) Elite becoming eligible to use Form S-3 (or any successor "short-form" registration statement) to register the Warrant Shares (the "S-3 Eligibility Date") or (ii) such time as the "Average Trading Price" -------------------- (as defined below) of the Common Stock is equal to or greater than $4.00 (subject to appropriate adjustment in the event of any stock split, reverse stock split, stock dividend, recapitalization or reclassification occurring after the date hereof in respect of the Common Stock) (the earlier of such dates, the "Registration Event"). ------------------ -12-
(e) Promptly after the occurrence of the Registration Event (but in no event later than 15 days thereafter), Elite shall prepare and file with the Commission either (i) a post-effective amendment to the Registration Statement, together with an appropriate letter of transmittal which shall be on Form S-3 (or such successor form) if the Eligibility Date has occurred, or (ii) a new registration statement, which shall be on Form S-3 (or such successor form) if the Eligibility Date has occurred (such post-effective amendment or new registration statement, the "Warrant ------- Shares Registration Statement") registering the Warrant Shares and related documents;
(2) utilize shall use ----------------------------- commercially reasonable efforts to cause the services of a depositary for Warrant Shares Registration Statement to become effective, including to respond to all comments from the Exchange Offer with an address in Commission and to file all amendments to the Borough of Manhattan, The City of New York;
(3) permit Holders Warrant Shares Registration Statement so required to withdraw tendered Notes at any time prior respond to 5:00 p.m., New York time, on such comments. Elite shall use commercially reasonable efforts to maintain the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close effectiveness of the Exchange Offer and Warrant Shares Registration Statement until the Private ExchangeEffectiveness Termination Date; provided, if anyhowever, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding Elite shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote convert any Warrant Shares Registration Statement that is not on Form S-3 (or consent as such successor form) to a separate class registration statement on Form S-3 (or such successor form) in the event that the Registration Event occurs prior to the S-3 Eligibility Date and (ii) Elite's obligation to maintain the effectiveness of the Warrant Shares Registration Statement shall be suspended during any matterperiod after the occurrence of a Registration Event and prior to the S-3 Eligibility Date during which the Average Trading Price of the Common Stock is less than $4.00 (subject to appropriate adjustment in the event of any stock split, reverse stock split, stock dividend, recapitalization or reclassification occurring after the date hereof in respect of the Common Stock).
(cf) In As used herein "Average Trading Price" means, as of any --------------------- date of determination, the event that (i) any changes in law or the applicable interpretations arithmetic average of the staff closing prices of the Commission do not permit Common Stock on the Issuers American Stock Exchange, or such successor exchange or other exchange or market on which the Common Stock is then listed or quoted for exchange for the twenty (20) consecutive trading days ending on the trading day immediately prior to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereofdetermination.
Appears in 1 contract
Sources: Settlement Agreement (Elite Pharmaceuticals Inc /De/)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers The Issuer shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) no later than the earlier to occur of April 30, 2008 and the 30th day following delivery from the Issuer's independent auditors of an audit report covering the consolidated financial statements for the year ending December 31, 2007 (the earlier of such dates, the “Filing Deadline” and the date of such filing, the “Filing Date”), with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes issued by the Issuer and guaranteed by the Guarantors (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages Additional Interest upon a Registration Default), (ii) use their its commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective (the “Effective Date”) under the Securities Act not later than 120 days after the Filing Date and (iii) use their commercially its reasonable best efforts to consummate the Exchange Offer within 180 not later than 40 days after the Issue Effective Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company Issuer will offer the Exchange Notes in exchange for surrender of the Notes. The Company Issuer shall keep the Exchange Offer open for not less than 20 Business Days 30 days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company Issuer in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer Act or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iviii) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and Notes, (viv) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange NotesNotes and (v) such Holder has full power and authority to transfer the Notes in exchange for the Exchange Notes and that the Issuer will acquire good and unencumbered title thereto free and clear of any liens, restrictions, charges or encumbrances and not subject to any adverse claims.
(b) The Company Issuer and the Initial Purchasers Purchaser acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuer and the Initial Purchasers Purchaser also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree Issuer agrees to use their its reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up not to 210 exceed 180 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company Issuer in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company Issuer shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, the Initial Purchaser or any Holder Holder, as the case may be, holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company Issuer upon the request of the Initial Purchaser or any such Holder Holder, as the case may be, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchaser or any such Holder, as the case may be, in exchange (the “Private Exchange”) for such Notes held by the Initial Purchaser or any such Holder, as the case may be, a like principal amount of notes (the “Private Exchange Notes”) of the Company Issuer that are identical in all material respects to the Exchange NotesNotes except that the Private Exchange Notes may be subject to restrictions on transfer and bear a legend to such effect. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. For each Note surrendered in the Exchange Offer, the Holder will receive an Exchange Note having a principal amount equal to that of the surrendered Note. Interest on each Exchange Note and Private Exchange Note issued pursuant to the Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the Issue Date. Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuer and the Guarantors shall have no further registration obligations other than the continuing registration obligations with respect to (i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which clause (c)(iii) of this Section 2 applies. In connection with the Exchange Offer, the Company Issuer shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company Issuer shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn by the Holders pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each such Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Registrable Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Issuer to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers Issuer and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem Issuer deems necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (ix) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers Issuer to effect the Exchange Offer, (iiy) for any reason the Exchange Offer is not consummated within 180 before 160 days after April 30, 2008, (z) prior to the 20th day following the consummation of the Issue DateExchange Offer (i) the Initial Purchaser requests with respect to Notes not eligible to be exchanged for Exchange Notes in the Exchange Offer, (iiiii) any Holder (Holder, other than the Initial Purchasers) Purchaser, is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder Offer or does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), the Issuer within the meaning of the Securities Act) or (viii) the Initial Purchasers Purchaser so request requests with respect to Notes or Private Exchange Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (ix) through and (viy) of this sentence, a “Shelf Filing Event”), then the Issuers Issuer shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless Notwithstanding the Exchange Offer would violate provisions of Section 3(a), at the option of the Compa ny, to the extent any applicable law or any applicable interpretation of the staff of the CommissionSEC would permit holders thereafter to resell Exchange Notes without restriction, the Issuers shall (i) file a Registration Statement (the “Company may, in lieu of complying with Section 3(a), cause to be filed an Exchange Offer Registration Statement”) with Regis tration Statement covering the Commission on an appropriate registration form with respect offer by the Company to a registered offer (the “Exchange Offer”) holders of Senior Notes to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects , to have such Exchange Offer Registration Statement declared effective by the Notes (except that SEC not later than January 4, 1998 and to have such Registration Statement remain effective until the closing of the Exchange Notes Offer. The Company shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause com mence the Exchange Offer promptly after the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being has been declared effective by the CommissionSEC by mailing the related exchange offer Pro spectus and accompanying documents to each holder of Senior Notes stating, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if addition to such other disclo sures required by applicable law:
(i) after the date notice of that the Exchange Offer is mailed being made pursuant to Holders. Each Holder this Agreement and that participates all Registrable Securities validly tendered will be accepted for exchange;
(ii) the date of acceptance for exchange (which shall be a period of at least 60 days from the date such notice is mailed) (the "Exchange Date");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest but, except as set forth in the last paragraph of this Section 3(d), will not re tain any rights under this Agreement;
(iv) that holders of Senior Notes electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if surrender such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration StatementRegistrable Security, together with an appropriate letter the enclosed letters of transmittal transmittal, to the insti tution and related documents;
at the address (2) utilize the services of a depositary for the Exchange Offer with an address located in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time specified in the notice prior to 5:00 p.m., New York time, the close of business on the last Business Day on which the Exchange Offer shall remain openDate; and
(4v) otherwise comply that holders of Senior Notes will be entitled to withdraw their election not later than the close of business on the last Ex change Date, by sending to the institution and at the address (located in all material respects 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 princi pal amount of Registrable Securities delivered for exchange and a statement that such holder is with all applicable laws, rules and regulationsdrawing its election to have such Senior Notes ex changed. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if anyDate, the Company shall:
(1i) accept for exchange all Notes validly Registrable Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;Offer; and
(2ii) deliver deliver, or cause to be delivered deliv ered, to the Trustee for cancellation in accordance with Section 5(t) all Notes Registra ble Securities or portions thereof so accepted for exchange; and
(3) exchange by the Company and issue, and cause the Trustee trustee under the indenture governing the Exchange Notes to promptly authenticate and deliver promptly mail to each Holder of Notesholder, a new Exchange Notes or Private Exchange NotesNote, as the case may be, equal in principal amount to the Notes principal amount of the Registrable Securities surrendered by such Holder so accepted for exchangeHolder. The Company shall use its best efforts to com plete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securi ties Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding SEC. The Company shall have been instituted or threatened in any court or by any governmental agency which might materially impair inform the ability Purchasers of the Issuers names and addresses of the holders of Senior Notes to proceed with whom the Exchange Ex change Offer or the Private Exchangeis made, and no material adverse development the Purchasers shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as contact such holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. In connection with the Exchange Registration, the Company will provide a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of letter to the staff of the Commission do not permit SEC that contains statements and representations sub stantially in the Issuers form set forth in Mary Kay Cosmetics, Inc. (n▇-▇▇t▇▇▇ letter available June 5, 1991), Morqan Stanley & Co. Incorporated (▇▇-▇▇tion letter available June 5, 1991), Warnaco, Inc. (no-▇▇▇▇▇▇ ▇▇▇▇▇▇ available October 11, 1991), Shearman & Sterling (no-action letter available July 2, 1993), Grupo Financiero InverMexico, S.A. (no-action letter available April 4, 1995) and no- action letters to effect similar effect. As provided in the Exchange OfferIndenture, (ii) for any reason in the event that neither the Shelf Registration nor the Exchange Offer Registration Statement is not consummated within 180 days of declared effective by January 4, 1998, the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes interest rate on the date of the exchange that may Senior Notes shall be sold without restriction under state and federal securities laws (other than due solely to the status of permanently increased, beginning at such holder as an affiliate of any Issuer)time, (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereofby 1/2% per annum.
Appears in 1 contract
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required required, as a condition to its participation in the Exchange Offer, to represent to the Company in writing (which may be contained in the applicable letter of transmittal) that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has 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 (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it and that such Holder is not an affiliate (as defined in Rule 405 under of the Company within the meaning of the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements . Upon consummation of the Securities Act Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to the extent applicableapply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers (iv) if such Holder is not a broker-dealer, it is not engaged inas defined), and does not intend the Issuers shall have no further obligation to engage in, a distribution of register Registrable Notes (other than Private Exchange Notes and (v) if such Holder is a broker-dealer that will receive other than in respect of any Exchange Notes for its own account as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes and Guarantees shall be included in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such the Exchange NotesOffer Registration Statement.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” Issuers shall include within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan section entitled "Plan of distribution containing Distribution," reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such "Plan of Distribution" section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement to the above effect and describing the means by which 8 -7- Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection compliance with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the The Issuers agree to shall use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for a such period of up time as is necessary to 210 comply with applicable law in connection with any resale of the Exchange Notes covered thereby; provided, however that such period shall not exceed 180 days after the date on which the such Exchange Registration Statement Offer is declared effective, effective (or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof hereof) (such period, the “"Applicable Period”"), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder Initial Purchaser holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange OfferInitial Purchaser, the Company upon the request of any such Holder Initial Purchaser shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such HolderInitial Purchaser, in exchange (the “"Private Exchange”") for such Notes held by any such HolderInitial Purchaser, a like principal amount of notes (the “"Private Exchange Notes”") of the Company Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. Interest on the Exchange Notes and the Private Exchange Notes will accrue from (A) the later of (i) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or (ii) if the Notes are surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B) if no interest has been paid on the Notes, from the date of the original issuance of the Notes. In connection with the Exchange Offer, the Company Issuers shall:
(1) mail mail, or cause to be mailed mailed, to each Holder entitled to participate in the Exchange Offer a copy of the 9 -8- Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) keep the Exchange Offer open for not less than 20 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork which may be the Trustee or an affiliate thereof;
(34) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day business day on which the Exchange Offer shall remain open; and
(45) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing ing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that If, (i) because of any changes change in law or the applicable in currently prevailing interpretations of the staff of the Commission do not permit SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than holder of Private Exchange Notes so requests in writing to the Initial Purchasers) is prohibited by law or Company within 120 days after the applicable interpretations consummation of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder Holder as an affiliate of any Issuer)the Company within the meaning of the Securities Act) and such Holder so notifies the Company within 90 days after such Holder first becomes aware of such event, (v) then in the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status case of unsold allotments in an initial distribution or (vi) any Holder each of Private Exchange Notes so requests (each such event referred to in clauses (i) through to and including (viiv) of this sentence, a “the Company shall promptly deliver to the Holders and the Trustee written notice thereof (the "Shelf Filing Event”), then the Issuers Notice") and shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Kci New Technologies Inc)
Exchange Offer. (a) Unless applicable law, a policy of the SEC or interpretations of the staff of the SEC would not permit the consummation of the Exchange Offer, the Issuer and the Guarantors shall:
(i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the Securities Act with respect to a proposed offer (the “Exchange Offer”) to the Holders who are not prohibited by law or a policy of the SEC from participating in the Exchange Offer would to issue and deliver to such Holders, in exchange for the Notes, a like aggregate principal amount of Exchange Securities;
(ii) use their respective reasonable best efforts to cause the Exchange Offer Registration Statement to become effective under the Securities Act as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date;
(iii) use their respective reasonable best efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer pursuant to its terms; and
(iv) use their respective reasonable best efforts to commence the Exchange Offer and, on or prior to 30 days after the Exchange Offer Registration Statement is declared effective, consummate the Exchange Offer and issue Exchange Securities in exchange for all Notes validly tendered and not validly withdrawn prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any SEC and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts no action or proceeding shall have been instituted in any court or by any governmental agency which might materially impair the ability of the Issuer and the Guarantors to cause proceed with the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue DateOffer. Upon the Exchange Offer Registration Statement being declared effective by the CommissionIf applicable law, the Company will offer the Exchange Notes in exchange for surrender a policy of the Notes. The Company shall keep SEC or interpretations of the Exchange Offer open for staff of the SEC would not less than 20 Business Days (or longer if required by applicable law) after permit the date notice consummation of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent prior to the Company in writing that (i) any Exchange Notes to be received by it will be acquired in Effectiveness Date, the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in Issuer and the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will Guarantors shall deliver a prospectus in connection with any re-sale of such Exchange NotesShelf Notice pursuant to Section 2(i) and file an Initial Shelf Registration pursuant to Section 3.
(b) The Company and Exchange Securities shall be issued under the Initial Purchasers acknowledge Indenture or a trust indenture that is identical to the staff of the Commission has taken the position that Indenture (other than such changes as are necessary to comply with any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale SEC to effect or maintain the qualification thereof under the TIA) and shall be entitled to the benefits of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company indenture and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer Collateral Agreements.
(a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”c) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company Issuer and the Guarantors shall:
(1i) mail mail, or cause to be mailed mailed, to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal that is an exhibit to the Exchange Offer Registration Statement, and any related documents;
(2ii) use their respective reasonable best efforts to keep the Exchange Offer open for not less than 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law);
(iii) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate thereof;
(3iv) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4v) otherwise comply in all material respects with all applicable laws, rules and regulations. .
(d) As soon as practicable after the close of the Exchange Offer Offer, the Issuer and the Private Exchange, if any, the Company Guarantors shall:
(1i) subject to clauses (ii), (iii) and (v) of Section 2(i), accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private ExchangeOffer;
(2ii) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3iii) cause the Trustee promptly to authenticate and deliver promptly to each Holder of NotesHolder, Exchange Notes or Private Exchange Notes, as the case may be, Securities equal in aggregate principal amount to the Notes of such Holder so accepted for exchange; provided, that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Exchange Securities in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement.
(e) Interest on each Exchange Security and each Private Exchange Security will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes. Each Exchange Security and each Private Exchange Security shall bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes surrendered in exchange therefor from time to time during such period.
(f) The Exchange Offer Issuer and the Private Exchange Guarantors shall not be subject to any conditions, other than that (i) include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” containing a summary statement of the positions taken or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of policies made by the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding SEC with respect to the Issuers potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Securities received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”). Such “Plan of Distribution” section shall also allow, to the extent and in the manner permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including (without limitation), to the extent so permitted, all Participating Brokers-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Securities. The Issuer and the Guarantors shall use their respective reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirement of the Securities Act for the shorter of: (i) such period of time as such Persons must comply with such requirements in order to resell the Exchange Securities and (iiiii) the period ending when all governmental approvals shall Registrable Securities covered by the Exchange Offer Registration Statement have been obtainedsold pursuant thereto (the “Applicable Period”).
(g) If, which approvals the Issuers (based upon advice of counsel) deem necessary for the prior to consummation of the Exchange Offer or Offer, the Initial Purchaser holds any Notes, the Issuer and the Guarantors shall, upon the request of the Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue (pursuant to the same indenture as the Exchange Securities and subject to transfer restrictions thereon) and deliver to the Initial Purchaser, in exchange for the Notes held by the Initial Purchaser (the “Private Exchange. The Exchange Notes and ”), a like principal amount of debt securities of the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture Issuer, including guarantees endorsed thereon, that are identical in all material respects to the Indenture Exchange Securities (in either casethe “Private Exchange Securities”), with such changes as are necessary to comply with any requirements except for the existence of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenturethereon. The Indenture If required by DTC or such indenture shall provide that the Exchange NotesCUSIP, the Private Exchange Notes Securities may bear a different CUSIP number than the Exchange Securities. For the avoidance of doubt, from and after the Notes shall vote and Exchange Offer, the Initial Purchaser agrees that, without the prior written consent together on all matters as one class and that none of the Exchange NotesIssuer, the Private Exchange neither it nor any of its affiliates will hold any Notes at any time for its or the Notes will have the right to vote or consent as a separate class on any matterof their own respective accounts.
(ch) In Unless applicable law, a policy of the event that (i) any changes in law SEC or the applicable interpretations of the staff of the Commission do SEC would not permit permit, the Issuers Issuer and the Guarantors shall require each Holder as a condition to effect participation in the Exchange Offer to represent in writing to the Issuer and the Guarantors that, at the time of the consummation of the Exchange Offer: (i) any Exchange Securities received by such Holder in the Exchange Offer will be acquired in the ordinary course of its business; (ii) at the time of the commencement and at the time of consummation of the Exchange Offer, such Holder has not entered into any arrangement or understanding with any Person to participate in the distribution of the Exchange Securities within the meaning of the Securities Act or resale of the Exchange Securities in violation of the Securities Act; (iii) if such Holder is not a broker-dealer, it is not engaged in and does not intend to engage in, the distribution of the Exchange Securities; (iv) if such Holder is a Participating Broker-Dealer, it will deliver a prospectus, as required by law, in connection with any resale of such Exchange Securities; and (v) such Holder is not an affiliate (as defined in Rule 405 of the Securities Act) of the Issuer or if such Holder is an affiliate of the Issuer, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable to it.
(i) If: (i) prior to the consummation of the Exchange Offer, the Issuer or the Holders of a majority in aggregate principal amount of Registrable Securities determines in its or their reasonable judgment that (A) the Exchange Securities would not in general, upon receipt, be tradeable by the Holders thereof without restriction under the Securities Act and the Exchange Act and without material restrictions under applicable Blue Sky or state securities laws, or (B) the interests of the Holders under this Agreement, taken as a whole, would be materially adversely affected by the consummation of the Exchange Offer; (ii) for any reason applicable law, a policy of the SEC or interpretations of the staff of the SEC would not permit the consummation of the Exchange Offer prior to the Effectiveness Date; (iii) [reserved]; (iv) the Exchange Offer is not consummated within 180 270 days of the Issue Date, Closing Date for any reason; or (iiiv) in the case of (A) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible SEC policy from participating in the Exchange Offer, (ivB) in the case of any Holder that participates participating in the Exchange Offer, such Holder does not receive Offer that receives Exchange Notes on the date of the exchange Securities that may not be sold without restriction under state and federal securities laws (other than due solely to the status of such holder Holder as an affiliate of the Issuer within the meaning of the Securities Act) or (C) any Issuerbroker-dealer that holds Notes acquired directly from the Issuer or any of their respective affiliates (excluding, in the case of each of (A) through (C), any Holder that is the Initial Purchaser or any of its affiliates (within the meaning of the Securities Act)) and, in each such case contemplated by this clause (v), such Holder notifies the Issuer and the Guarantors within 45 days of consummation of the Exchange Offer, then the Issuer shall promptly (and in any event within five Business Days) deliver to the Holders (or in the case of an occurrence of any event described in clause (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentenceSection 2(i), a to any such Holder) and the Trustee notice thereof (the “Shelf Notice”) and shall as promptly as practicable thereafter (but in no event later than the Shelf Filing Event”), then the Issuers shall Date) file a an Initial Shelf Registration Statement pursuant to Section 3 hereof3.
Appears in 1 contract
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the The Issuers shall (i) use their reasonable best efforts to file a Registration Statement (the “Exchange Offer Registration Statement”) within 90 days after the Issue Date with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain restrictive legends, terms with respect to transfer restrictions or Liquidated Damages Additional Interest upon a Registration Default), (ii) use their commercially reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act within 180 days after the Issue Date and (iii) use their commercially reasonable best efforts to consummate the Exchange Offer within 180 210 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company Issuers will offer the Exchange Notes in exchange for surrender of the Notes. The Company Issuers shall keep the Exchange Offer open for not less than 20 Business Days days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company Issuers in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities ActAct , (iii) it is not an affiliate (of the Company or any Guarantor as defined in by Rule 405 under of the Securities Act) of any Issuer or, or if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange Notes.
(b) The Company Issuers and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuers and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation Each of the staff of the Commission, the Issuers shall (i) agrees to file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on no later than the Filing Date, an appropriate registration form with respect offer to a registered offer exchange (the “Exchange Offer”"EXCHANGE OFFER") to exchange any and all of the Registrable Notes (other than Private Exchange Notes, if any) for a like aggregate principal amount of notes (including debt securities of the guarantees with respect thereto, the “Exchange Notes”) that Company which are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), "EXCHANGE NOTES") (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent which are entitled to the Company in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course benefits of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an a trust indenture which is identical in all material respects to the Indenture (in either case, with other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide TIA), except that the Exchange Notes shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain no restrictive legend thereon. The Exchange Offer shall be registered under the Securities Act on the appropriate form (the "EXCHANGE REGISTRATION STATEMENT") and shall comply with all applicable tender offer rules and regulations under the Exchange Act. Each of the Issuers agrees to use its best efforts to (x) cause the Exchange Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is first mailed to Holders; and (z) consummate the Exchange Offer within 225 days of the Issue Date. If after such Exchange Registration Statement is initially declared effective by the Commission, the Exchange Offer or the issuance of the Exchange Notes thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or any other governmental agency or court, such Exchange Registration Statement shall be deemed not be subject to the transfer restrictions set forth have become effective for purposes of this Agreement. Each Holder who participates in the Indenture. The Indenture or such indenture shall provide Exchange Offer will be required to represent that any Exchange Notes received by it will be acquired in the ordinary course of its business, that at the time of the consummation of the Exchange Notes, Offer such Holder will have no arrangement or understanding with any Person to participate in the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none distribution of the Exchange Notes, that such Holder is not an affiliate of any Issuer within the meaning of the Securities Act, and any additional representations that in the written opinion of counsel to the Issuers are necessary under then-existing interpretations of the Commission in order for the Exchange Registration Statement to be declared effective. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, MUTATIS MUTANDIS, solely with respect to Registrable Notes that are Private Exchange Notes or and Exchange Notes held by Participating Broker-Dealers, and the Issuers shall have no further obligation to register Registrable Notes will have the right (other than Private Exchange Notes and other than in respect of any Exchange Notes as to vote or consent as a separate class on any matterwhich clause 2(c)(iv) hereof applies) pursuant to Section 3 of this Agreement.
(cb) In The Issuers shall include within the event that (i) any changes Prospectus contained in law or the applicable interpretations Exchange Registration Statement a section entitled "Plan of Distribution," reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the staff positions taken or policies made by the Staff of the Commission do not permit with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a "PARTICIPATING BROKER-DEALER"), whether such positions or policies have been publicly disseminated by the Staff of the Commission or such positions or policies, in the judgment of the Initial Purchasers, represent the prevailing views of the Staff of the Commission. Such "Plan of Distribution" section shall also allow, to the extent permitted by applicable policies and regulations of the Commission, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. Each of the Issuers shall use its best efforts to effect keep the Exchange Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such Persons must comply with such requirements in connection with offers and sales of the Exchange Notes (the "APPLICABLE PERIOD"). If, upon consummation of the Exchange Offer, (ii) for any reason Initial Purchaser holds any Notes acquired by it and having the status of an unsold allotment in the initial distribution, the Issuers upon the request of such Initial Purchaser shall, simultaneously with the delivery of the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating Notes in the Exchange Offer, issue and deliver to such Initial Purchaser, in exchange (ivthe "PRIVATE EXCHANGE") for the Notes held by such Initial Purchaser, a like principal amount of debt securities of the Company that are identical in all material respects to the case Exchange Notes except for the existence of any Holder that participates restrictions on transfer thereof under the Securities Act and securities laws of the several states of the U.S. (the "PRIVATE EXCHANGE NOTES") (and which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes. Interest on the Exchange Notes and Private Exchange Notes will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the Issue Date. In connection with the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.shall:
Appears in 1 contract
Exchange Offer. (a) Unless other order or requirement of the Exchange Offer would violate applicable law SEC or any applicable interpretation of the staff of the Commissionother governmental agency or court, the Issuers shall (i) file a such Exchange Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect shall be deemed not to a registered offer (the “Exchange Offer”) to exchange any and all have become effective for purposes of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holdersthis Agreement. Each Holder that who participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has 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 (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it Act and that such Holder is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making Company or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” Guarantor within the meaning of the Securities Act and must deliver is not acting on behalf of any persons or entities who could not truthfully make the foregoing representations. In addition, each broker-dealer that desires to participate in the Exchange Offer and to receive Exchange Notes will be required to represent that the Notes being tendered by such broker-dealer were acquired in ordinary trading or market-making activities and not in transactions directly with any Issuer or an Affiliate thereof (a prospectus meeting "Participating Broker-Dealer"). A broker-dealer that is not able to make the requirements foregoing representation will not be permitted to participate in the Exchange Offer. Upon consummation of the Securities Act Exchange Offer in connection accordance with any resale this Section 2, the provisions of such this Agreement shall continue to apply mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes and Exchange Notes held by Participating Broker-Dealers, the Company shall have no further obligation to register Registrable Notes (other than a resale Private Exchange Notes and other than in respect of an unsold allotment resulting from any Exchange Notes as to which clause 2(c)(v) hereof applies) pursuant to Section 3 hereof. No securities other than the original offering of Exchange Notes shall be included in the Notes). Exchange Registration Statement.
(b) The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if shall include within the Prospectus contained in the Exchange Offer Registration Statement includes a plan section entitled "Plan of distribution containing Distribution," reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the publicly disseminated positions taken or policies made by the Staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d- 3 under the Exchange Act) of Exchange Notes received by such broker-dealer. Such "Plan of Distribution" section shall also expressly permit the use of the Prospectus by all Persons 8 -7- subject to the prospectus delivery requirements of the Securities Act, including all Participating Broker-Dealers, and include a statement to the above effect and describing the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the The Issuers agree to shall use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for a such period of up time as is necessary to 210 comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not exceed 180 days after the date on which consummation of the Exchange Registration Statement is declared effective, Offer (or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof hereof) (such period, the “"Applicable Period”"), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds the Initial Purchasers hold any Notes acquired by it that havethem and having, or that are reasonably likely to be determined to have, the status of an unsold allotment in an the initial distribution, or if any Holder is not entitled to participate in the Exchange OfferIssuers shall, the Company upon the request of any such Holder shall the Initial Purchasers, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, the Initial Purchasers in exchange (the “"Private Exchange”") for such Notes held by any such Holder, the Initial Purchasers a like principal amount of notes (the “Private Exchange Notes”) debt securities of the Company that are identical in all material respects to the Exchange Notes. The Notes (the "Private Exchange Notes shall be Notes") (and that are issued pursuant to the same indenture as the Exchange Notes) except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes and shall bear the same CUSIP number as the Exchange Notes. Interest on the Exchange Notes and the Private Exchange Notes will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the Issue Date. In connection with the Exchange Offer, the Company Issuers shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day business day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and or the Private Exchange, if anyas the case may be, the Company Issuers shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and or the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall may be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (Indenture, which in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and event shall provide that (1) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (2) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (i▇▇) any changes ▇▇▇ Holders of not less than a majority in law or the applicable interpretations aggregate principal amount of the staff Registrable Notes determine that the interests of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason Holders would be materially adversely affected by consummation of the Exchange Offer is not consummated within 180 days of the Issue Date, or (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (ivv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder Holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, Issuers or that are reasonably likely to be determined to have, as an "underwriter" within the status meaning of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”the Securities Act), then the Issuers Company shall promptly deliver to the Holders and the Trustee written notice thereof (the "Shelf Notice") to the Trustee and in the case of clauses (i), (ii) and (iv), all Holders, in the case of clause (iii), the Holders of the Private Exchange Notes and in the case of clause (v), the affected Holder, and shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Amcast Radio Sales Inc)
Exchange Offer. (a) Unless Provided that nothing shall have occurred that would result in a failure to satisfy any of the conditions set forth in this Section 6.23 of this Agreement, Parent shall, as promptly as practicable, commence the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers shall to (i) file a Registration Statement issue to all holders of Company Senior Notes validly tendered in accordance with the terms of the Exchange Offer prior to the expiration date of the Exchange Offer and not validly withdrawn (x) an aggregate of 9,314,214 shares of Parent Common Stock and (y) the Parent Senior Notes in an aggregate principal amount equal to the Parent Senior Notes Consideration Amount ((x) and (y) collectively, the “Exchange Offer Registration StatementConsideration”) with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to in exchange for any and all of the Registrable $625 million in aggregate principal amount outstanding of Company Senior Notes for a like and (ii) in the event the Company has not filed the Company Chapter 11 Cases, pay in cash on the Closing Date all accrued and unpaid interest thereon to, but excluding, the Closing Date. In the Exchange Offer, the number of shares of Parent Common Stock and the aggregate principal amount of notes (including Parent Senior Notes to be issued in exchange for each $1,000 principal amount of outstanding Company Senior Notes will vary depending on the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects aggregate principal amount of Company Senior Notes validly tendered pursuant to the Notes (except that the Exchange Notes shall not contain terms Offer. Calculations of share amounts for such purpose will be rounded down with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts each holder to cause the Exchange Offer Registration Statement to nearest whole share and no fractional shares of Parent Common Stock will be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, issued for the Company will offer the Exchange Notes in exchange for surrender of the Senior Notes. The Company shall keep the Exchange Offer open Calculations of principal amounts for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer Parent Senior Notes for such purpose will be required rounded down with respect to represent each holder to the Company nearest amount that is equal to $2,000 and integral multiples of $1,000 in writing that (i) any Exchange Notes to be received by it excess thereof and no additional shares of Parent Common Stock will be acquired issued or payment made in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if compensation for such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notesadjustments.
(b) The Company and the Initial Purchasers acknowledge that the staff obligations of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in Parent under the Exchange Offer (a “Participating Broker-Dealer”) may shall be deemed subject to be an “underwriter” within the meaning satisfaction of the Securities Act and must deliver a prospectus meeting conditions to the requirements consummation of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements Merger set forth in Article VII of this Agreement and to the preceding paragraph. Iffurther condition that, prior to consummation in the case of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery less than 97.5% of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like aggregate outstanding principal amount of notes (the “Private Exchange Notes”) Company Senior Notes and not less than a majority of the outstanding principal amount of each series of Company that are identical in all material respects to the Exchange Notes. The Private Exchange Senior Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection have been validly tendered in accordance with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part terms of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close expiration date of the Exchange Offer and not validly withdrawn (such 97.5% of the Private Exchange, if any, outstanding principal amount of the Company shall:
(1) accept for exchange all Senior Notes and no less than a majority of the outstanding principal amount of each series of Company Senior Notes validly tendered and not validly withdrawn pursuant being herein referred to as the “Minimum Participation Condition”). Except as otherwise provided in this Agreement, no term or condition of the Exchange Offer may be amended or modified without the prior written consent of Company and Parent, which consent shall not be unreasonably withheld.
(c) Holders of Company Senior Notes who tender into the Exchange Offer will be required, as a condition to a valid tender, to give their consent (the “Note Consents”) with respect to all Company Senior Notes tendered by them to (i) vote to accept the Prepackaged Plan, (ii) make such amendments to the definition of “Change of Control” and other related provisions in the respective indenture or supplemental indentures to which such Company Senior Notes are subject as are required to expressly exclude the Transactions from such definitions and related provisions (the “Change of Control Amendment”), such Change of Control Amendment shall be subject to a consent fee of $2.50 per $1,000 principal amount of the Company Senior Notes (the “Change of Control Amendment Consent Fee”), which shall be paid by the Company to consenting holders promptly upon satisfaction of the Minimum Participation Condition, and (iii) the following amendments to the respective indenture or supplemental indentures to which such Company Senior Notes are subject, together with such additional amendments thereto or waivers thereof as shall be determined and consented to by each of Parent and the Company to be necessary or desirable (the “Other Indenture Amendments”): amendments to eliminate (A) any covenants which may be modified or eliminated by majority vote of the Company Senior Notes, including without limitation any covenants which restrict (s) the sale of assets, (t) any change of control, (u) the incurrence of indebtedness, (v) the making of restricted payments, (w) the existence of limitations on distributions by Subsidiaries, (x) the existence of Encumbrances, (y) transactions with Affiliates or related persons or (z) the issuance and sale of stock of subsidiaries, (B) any events of default which relate to (x) with respect to a series of Company Senior Notes, the non-payment or acceleration of Indebtedness other than such series of Company Senior Notes, (y) the failure to discharge judgments for the payment of money, or (z) the bankruptcy or insolvency of Subsidiaries, and (C) any provisions which condition mergers or consolidations on compliance with any financial criteria. Such holders will also be required, as a condition to a valid tender but subject to the consummation of the Merger and payment in full of the Exchange Consideration, to waive (the “Note Waivers”) any and all existing defaults on or with respect to the Company Senior Notes that may be modified or eliminated by majority vote of the Company Senior Notes and any and all rights to rescind their acceptance of the Exchange Offer after the Exchange Offer Expiration Date (as defined in Section 6.23(c)), such waiver of rescission rights to be subject, however, to their withdrawal rights under applicable Law, or to claim any payments relating to the Company Senior Notes tendered under applicable Law, and for any other relief, legal or equitable, based on any possible future judicial, administrative or other governmental or legal determination that the Note Consents or the adoption of the Change of Control Amendment or any of the Other Indenture Amendments are invalid or unenforceable. Notwithstanding anything to the contrary herein, the Note Waivers shall not be deemed to cover claims for violations of federal or state securities Laws relating to the Exchange Offer.
(d) Provided the conditions to the Exchange Offer set forth in this Section 6.23 above have been satisfied or waived and Parent has fulfilled its obligation hereunder to accept for exchange Company Senior Notes validly tendered and not withdrawn and the Private Exchange;
(2) deliver Company has not filed the Company Chapter 11 Cases, Company Senior Notes that are not accepted in the Exchange Offer will remain outstanding as obligations of Parent or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange NotesSurviving Corporation, as the case may be, equal in principal amount to after consummation of the Notes of such Holder so accepted for exchange. The Exchange Offer Merger and Parent or the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private ExchangeSurviving Corporation, as the case may be, does not violate alone shall be obligated to comply with the terms thereof, except as may otherwise be provided in the Prepackaged Plan or the Confirmation Order if the Company Chapter 11 Cases are commenced. Such Company Senior Notes shall be modified only to the extent provided in the Change of Control Amendment, the Other Indenture Amendments and the Note Consents.
(e) The Exchange Offer will expire at 11:59 p.m., New York City time, on the twentieth business day after such commencement, or, consistent with this Agreement and the provisions of Section 6.24, at such later time and date as Parent and the Company shall select consistent with applicable law Law and regulations (the “Exchange Offer Expiration Date”).
(f) The Parent Common Stock and Parent Senior Notes to be issued in exchange for the Company Senior Notes tendered and accepted in the Exchange Offer will be so issued only after timely receipt by the exchange agent selected by Parent (the “Notes Exchange Agent”) of: (i) certificates for all physically delivered Company Senior Notes in proper form for transfer, or any applicable interpretation timely confirmation of the staff book-entry transfer of the Commission, such Company Senior Notes for such purposes; (ii) no action or proceeding shall have been instituted or threatened a properly completed and duly executed letter of transmittal in any court or by any governmental agency which might materially impair the ability form provided on behalf of the Issuers to proceed with the Exchange Offer Parent or the Private ExchangeSurviving Corporation or a duly transmitted “agent’s message” under DTC procedures, and no material adverse development shall have occurred in any existing action or proceeding with respect to as the Issuers and case may be, for such purpose; (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice a duly executed form of counsel) deem necessary for the consummation of the Exchange Offer Note Consent and Note Waiver or Private Exchange. The Exchange Notes a duly transmitted “agent’s message” under DTC procedures; and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates other physically delivered Company Senior Notes, any other documents required by the letter of transmittal.
(g) For purposes of the Exchange Offer, Parent shall be deemed to have accepted for exchange the tendered Company Senior Notes when Parent gives oral or written notice to the Notes Exchange Agent of its acceptance of such notes for exchange. The Notes Exchange Agent will act as agent for the tendering holders for the purpose of receiving the Company Senior Notes and transmitting the Parent Common Stock and Parent Senior Notes in exchange therefor.
(h) Parent and the Company shall jointly establish such additional procedures and requirements with respect to the conduct of the Exchange Offer and shall cause the same to be communicated to holders of the Company Senior Notes in such manner as they shall determine to be necessary or appropriate, including procedures and requirements as may be necessary to obtain confirmation of the Prepackaged Plan if the Company Chapter 11 Cases are commenced. All questions concerning the timeliness, validity, form, eligibility, and acceptance for exchange or withdrawal of any tender of the Company Senior Notes pursuant to any of the procedures described herein or any additional procedures established by the parties shall be determined jointly by the parties, whose determinations shall be final and binding. Parent reserves the absolute right to: (i) waive any defect or irregularity in any tender with respect to any particular Company Senior Note or any particular holder; or (ii) permit a defect or irregularity to be corrected within such time as it may determine. Tenders shall not be deemed to have been received or accepted until all defects and irregularities have been cured or waived within such time as Parent may determine in its sole discretion. None of Parent, the Company or the Notes Exchange Agent or any other Person shall be under any duty to give notification of any defects or irregularities relating to tenders or incur any liability for failure to give such notification.
(i) Parent shall accept the Company Senior Notes tendered in the Exchange Offer, such Holder does and deposit the Exchange Consideration (including, in the event the Company has not receive Exchange Notes filed the Company Chapter 11 Cases, cash in the amount of any accrued and unpaid interest on the Company Senior Notes from the most recent payment date to, but excluding the Closing Date) with the Note Exchange Agent at the Effective Time.
(j) In the event the Company has not filed the Company Chapter 11 Cases, promptly upon receipt of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to consents of the status holders of such holder as an affiliate at least a majority of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to haveoutstanding principal amount of a series of Company Senior Notes, the status Company shall execute the applicable supplemental indenture providing for the Change of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (Control Amendment and the Other Indenture Amendments, each such event referred supplemental indenture to in clauses become effective immediately upon the execution and delivery thereof (i) through (vi) of this sentenceeach, a “Shelf Filing EventSupplemental Indenture Effective Date”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Transaction Support Agreement (HighPoint Resources Corp)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the The Issuers shall (i) file a Registration Statement (the “"Exchange Offer Registration Statement”") within 90 days after the Issue Date with the Commission on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “"Exchange Notes”") that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially respective reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act within 150 days after the Issue Date and (iii) use their commercially respective reasonable best efforts to consummate complete the Exchange Offer within 180 days after the Issue Date. Upon Promptly after the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker"PARTICIPATING BROKER-Dealer”DEALER") may be deemed to be an “"underwriter” " within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker"REQUESTING PARTICIPATING BROKER-Dealer”DEALER"), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 180 days after the date on which the Exchange Offer Registration Statement is declared effective, or such longer period if extended pursuant to plus the penultimate paragraph length of any Delay Period, as defined in Section 5 hereof (such period, the “Applicable Period”"APPLICABLE PERIOD"), or such earlier (date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”"PRIVATE EXCHANGE") for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”"PRIVATE EXCHANGE NOTES") of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers Company and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem Company deems necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such other indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange OfferOffer and such Holder so notifies the Company, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer)) and such Holder so notifies the Company, (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”"SHELF FILING EVENT"), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Fibermark Office Products LLC)
Exchange Offer. (a) Unless At the request of a Majority Interest of the DLJMB Holders (an "Exchange Offer Request"), unless the Exchange Offer would violate shall not be permitted by applicable federal law or any applicable interpretation of (after the staff of procedures set forth in Section 8(a)(i) have been complied with), the Company agrees to effect a Demand Registration Statement by filing with the Commission, no later than the Issuers shall (i) file a Registration Statement Required Filing Date, an offer to exchange (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes Preferred Shares for a like aggregate principal amount securities of notes (including the guarantees with respect thereto, the “Exchange Notes”) Company that are identical in all material respects to the Notes Preferred Shares (the "Exchange Shares"), except that the Exchange Notes Shares shall have been registered pursuant to an effective registration statement under the Securities Act and shall contain no restrictive legend thereon. A Demand Registration Statement filed pursuant to this Section 2(g) shall not contain terms with respect be counted for purposes of the calculation performed pursuant to transfer restrictions or Liquidated Damages upon a Registration Defaultthe first proviso to the first sentence of Section 2(a), . The Exchange Offer shall be registered under the Securities Act on the appropriate form permitting (i) registration of the Exchange Shares to be offered in exchange for the Preferred Shares covered by such Demand Request and (ii) resales of Exchange Shares by Broker-Dealers that tendered into the Exchange Offer Preferred Shares that such Broker-Dealers acquired for their own account as a result of market making activities or other trading activities as contemplated by Section 3(b) (the "Exchange Registration Statement"), and shall comply with all applicable tender offer rules and regulations under the Exchange Act. The Company agrees to use their commercially its reasonable best efforts to (i) cause the Exchange Offer Registration Statement to be declared effective under the Securities Act at the earliest possible time, but in no event later than 60 days following the Required Filing Date (such 60th day being the "Effectiveness Deadline"), (ii) upon the effectiveness of the Exchange Registration Statement, commence and consummate the Exchange Offer, (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is first mailed to Holderssecurityholders; and (iv) consummate the Exchange Offer on to the earliest practicable date following the date on which the Exchange Registration Statement is declared effective, but in no event later than the earlier to occur of (i) 30 days thereafter or (ii) 30 days after the Effectiveness Deadline (such deadline being the "Consummation Deadline"). No securities other than the Exchange Shares shall be included in the Exchange Offer Registration Statement. Each Holder that securityholder who participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be Shares received by it will be acquired in the ordinary course of its business, (ii) it has that at the time of the consummation of the Exchange Offer such securityholder will have no arrangement or understanding with any Person to participate in the distribution (of the Exchange Shares within the meaning of the Securities Act) , that such securityholder is not an affiliate of the Exchange Notes in violation of Company or its Affiliates within the provisions meaning of the Securities Act, (iii) it is not an affiliate (as defined and any additional representations that in Rule 405 the written opinion of counsel to the Company are necessary under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements then-existing interpretations of the Securities Act Commission in order for the Exchange Registration Statement to be declared effective. If the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder securityholder is a brokerBroker-dealer Dealer that will receive Exchange Notes Shares for its own account in exchange for Notes Preferred Shares, it will represent that the Preferred Shares to be exchanged for the Exchange Shares were acquired by it as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making activities or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must will acknowledge that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than Shares. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Shares, the securityholder is not admitting that it is an unsold allotment resulting from "underwriter" within the original offering meaning of the Notes)Securities Act. The Company shall use its reasonable best efforts to (i) keep the Exchange Registration Statement continuously effective and current for at least 30 days (or longer if required by applicable law); (ii) to amend and supplement the Initial Purchasers also acknowledge that Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the staff prospectus delivery requirements of the Commission has taken Securities Act for such period of time, to be not less than the position that minimum period required under applicable federal and state securities laws to consummate the Exchange Offer, and (iii) cause all necessary filings, if any, in connection with the registration and qualification of the Exchange Shares to be made under the state securities or "blue sky" laws of such jurisdictions as are necessary to permit consummation of the Exchange Offer.
(b) The Company shall include a "Plan of Distribution" section in the Prospectus contained in the Exchange Offer Registration Statement includes and indicate therein that any Broker-Dealer who holds Preferred Shares covered by such Exchange Offer Request that were acquired for the account of such Broker-Dealer as a plan result of distribution containing a statement market-making activities or other trading activities, may exchange such Preferred Shares pursuant to the above effect and the means Exchange Offer. Such "Plan of Distribution" section shall also contain all other information with respect to such sales by which Participating such, Broker-Dealers that the Commission may resell the Exchange Notesrequire in order to permit such sales pursuant thereto, without naming the Participating but such "Plan of Distribution" shall not name any such Broker-Dealers Dealer or specifying disclose the amount of Exchange Notes owned Preferred Shares held by themany such Broker-Dealer, except to the extent required by the Commission as a result of a change in policy, rules or regulations after the date of this Agreement. See the Shearman & Sterling no-action letter (available July 2, 1993). Because such Prospectus Broker-Dealer may be delivered by Participating Broker-Dealers deemed to satisfy their be an "underwriter within the meaning of the Securities Act and must, therefore, deliver a prospectus delivery obligations under meeting the requirements of the Securities Act in connection with resales its initial sale of any Exchange Notes for their own accountsShares received by such Broker- Dealer in the Exchange Offer, so long as the Company shall permit the use of the Prospectus otherwise meets contained in the requirements of the Securities Act. In light of the foregoing, if requested Exchange Registration Statement by a Participating such Broker-Dealer (a “Requesting Participating to satisfy such prospectus delivery requirement. To the extent necessary to ensure that the Prospectus contained in the Exchange Registration Statement is available for sales of Exchange Shares by Broker-Dealer”)Dealers, the Issuers agree Company agrees to use their its reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective effective, supplemented, amended and current as required by and subject to the provisions of Sections 8 (a) and (b) and in conformity with the requirements of this Agreement, the Securities Act and the policies, rules and regulations of the Commission as announced from time to time, for a period of up to 210 180 days after from the date on which the Consummation Deadline or such shorter period as will terminate when all Preferred Shares covered by such Exchange Registration Statement is declared effective, or such longer period if extended have been sold pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offerthereto. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation provide sufficient copies of the Exchange Offerlatest version of such Prospectus to such Broker-Dealers, any Holder holds any Notes acquired by it that havepromptly upon request, or that are reasonably likely to be determined to haveand in no event later than one day after such request, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of during such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matterperiod.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Investor Registration Rights Agreement (Haights Cross Communications Inc)
Exchange Offer. (a) Unless The Issuers and the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers Guarantors shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) within 60 days after the Issue Date with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Transfer Restricted Securities that are Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages Additional Interest upon a Registration Default), (ii) use their respective commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act within 180 days after the Issue Date and (iii) use their commercially reasonable respective best efforts to consummate the Exchange Offer within 180 days 30 Business Days, or longer, if required by the federal securities laws, after the Issue Datedate on which the Exchange Offer Registration Statement is declared effective by the Commission. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company Issuers and the Guarantors will offer the Exchange Notes in exchange for surrender of the Notes. The Company Issuers and Guarantors shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company Issuers and the Guarantors in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer Act or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iviii) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and Notes, (viv) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange NotesNotes and (v) it has full power and authority to transfer the Notes in exchange for the Exchange Notes and that the Issuers and the Guarantors will acquire good and unencumbered title thereto free and clear of any liens, restrictions, charges or encumbrances and not subject to any adverse claims.
(b) The Company Issuers, the Guarantors and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuers, the Guarantors and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers and the Guarantors agree to use their respective commercially reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up not to 210 days exceed 90 Business Days after the date on which the Exchange Registration Statement Offer is declared effectiveconsummated, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company Issuers in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company Issuers and the Guarantors shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, the Initial Purchasers or any Holder Holder, as the case may be, holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company Issuers and the Guarantors upon the request of the Initial Purchasers or any such Holder Holder, as the case may be, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasers or any such Holder, as the case may be, in exchange (the “Private Exchange”) for such Notes held by the Initial Purchasers or any such Holder, as the case may be, a like principal amount of notes (the “Private Exchange Notes”) of the Company Issuers that are identical in all material respects to the Exchange NotesNotes except that the Private Exchange Notes may be subject to restrictions on transfer and bear a legend to such effect. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. For each Note surrendered in the Exchange Offer, the Holder will receive an Exchange Note having a principal amount equal to that of the surrendered Note. Interest on each Exchange Note and Private Exchange Note issued pursuant to the Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the Issue Date. Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuers and the Guarantors shall have no further registration obligations other than their continuing registration obligations with respect to (i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which clause (c)(iii) of this Section 2 applies. In connection with the Exchange Offer, the Company Issuers and the Guarantors shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company Issuers and the Guarantors shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn by the Holders pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the applicable Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the applicable Trustee to authenticate and deliver promptly to each such Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes Transfer Restricted Securities of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers and the Guarantors to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers or the Guarantors and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) and the Guarantors deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) either the 2010 Note Indenture or the 2015 Note Indenture, as applicable, or (ii) an indenture identical in all material respects to the applicable Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the applicable Indenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the applicable Indenture. The 2010 Note Indenture or such indenture shall provide that the Exchange 2010 Notes, and the Exchange Notes and the Private Exchange Notes and with respect thereto (the Notes “2010 Series”) shall each vote and consent together on all matters as one class and the 2015 Note Indenture or such indenture shall provide that none of the 2015 Notes, and the Exchange Notes, the Notes and Private Exchange Notes or with respect thereto (the Notes will have the right to “2015 Series”) shall each vote or and consent together on all matters as a separate class on any matterone class.
(c) In the event that (i) any changes in the Issuers and the Guarantors are not required to file the Exchange Offer Registration Statement or permitted to consummate the Exchange Offer because the Exchange Offer is not permitted by applicable law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offerpolicy, (ii) for any reason the Exchange Offer is not consummated within 180 days of 30 Business Days after the 180th day following the Issue Date, or (iii) any Holder notifies the Issuers prior to the 20th day following consummation of the Exchange Offer that (other than the Initial Purchasersx) it is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (ivy) in that it may not resell the case of any Holder that participates Exchange Notes acquired by it in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely Offer to the status of public without delivering a prospectus and the prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such holder as resales, or (z) that it is a broker-dealer and owns Notes acquired directly from the Issuers or an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests Issuers (each such event referred to in clauses (i) through (viiii) of this sentence, a “Shelf Filing Event”), then the Issuers and the Guarantors shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. The Company shall, for the benefit of the Holders, at the Company's cost, use its reasonable best efforts (aA) Unless to file with the SEC the Exchange Offer would violate applicable law or any applicable interpretation Registration Statement not later than 120 calendar days following the original issuance of the staff of the Commission, the Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form Securities with respect to a registered offer (proposed Exchange Offer and the “Exchange Offer”) issuance and delivery to the Holders, in exchange any and all of for the Registrable Notes for Securities, of a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default)Securities, (iiB) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 calendar days after of the Issue Date. Upon original issuance of the Securities, (C) to keep the Exchange Offer Registration Statement being declared effective by until the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice closing of the Exchange Offer is mailed to Holders. Each Holder that participates in and (D) unless the Exchange Offer would not be permitted by applicable law or SEC policy, to cause the Exchange Offer to be consummated within 210 calendar days following the original issuance of the Securities. The Exchange Securities will be required to represent to issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Company in writing shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities for Exchange Securities (assuming that such Holder (iA) any is not an affiliate of the Company within the meaning of Rule 405 under the 1933 Act, (B) is not a broker-dealer tendering Registrable Securities acquired directly from the Company or one of its Affiliates for its own account, (C) acquired the Exchange Notes to be received by it will be acquired Securities in the ordinary course of its business, such Holder's business and (iiD) it has no arrangement arrangements or understanding understandings with any Person to participate in the distribution (within Exchange Offer for the meaning purpose of distributing the Exchange Securities) to transfer such Exchange Securities from and after their receipt without any limitations or restrictions under the 1933 Act and without material restrictions under the securities laws of a substantial portion of the Securities Act) several states of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange NotesUnited States. In connection with the Exchange Offer, the Company shallwill:
(1A) as promptly as practicable after the Exchange Offer Registration Statement has been declared effective by the SEC, mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2B) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the "Exchange Period");
(C) utilize the services of a depositary the Depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkOffer;
(3D) permit Holders to (i) withdraw tendered Notes Registrable Securities at any time prior to 5:00 p.m., New York time, p.m. (Eastern Time) on the last Business Day on which of the Exchange Offer shall Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing such Holder's election to have such Securities exchanged and (ii) tender Registrable Securities according to customary guaranteed delivery procedures if such Holder cannot deliver such Registrable Securities or complete the procedures relating thereto on a timely basis prior to 5:00 p.m. (Eastern Time) on the last Business Day of the Exchange Period;
(E) notify each Holder that any Registrable Security not tendered will remain openoutstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(4F) otherwise comply in all material respects with all applicable laws, rules and regulationslaws relating to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if anyOffer, the Company shall:
(1A) accept for exchange all Notes validly Registrable Securities duly tendered and not validly withdrawn pursuant to the Exchange Offer in accordance with the terms of the Exchange Offer Registration Statement and the Private Exchangeletter of transmittal which shall be an exhibit thereto;
(2B) deliver or cause to be delivered all Registrable Securities accepted for exchange to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchangecancellation; and
(3C) cause the Trustee promptly to authenticate and deliver promptly Exchange Securities to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal Registrable Securities so accepted for exchange in a principal amount equal to the Notes principal amount of the Registrable Securities of such Holder so accepted for exchange. Interest on each Exchange Security will accrue from the last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of original issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (A) that (i) the Exchange Offer Offer, or Private Exchange, as the case may bemaking of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the CommissionSEC, (B) the valid tendering of Registrable Securities in accordance with the Exchange Offer, (C) that each Holder of Registrable Securities exchanged in the Exchange Offer shall have represented that (i) it is not an affiliate of the Company within the meaning of Rule 405 under the 1933 Act, (ii) it is not a broker-dealer tendering Registrable Securities acquired directly from the Company or one of its Affiliates for its own account, (iii) all of the Exchange Securities to be received by it shall be acquired in the ordinary course of its business and (iv) at the time of the consummation of the Exchange Offer it shall have no arrangement or understanding with any Person to participate in the distribution (within the meaning of the ▇▇▇▇ ▇▇▇) of the Exchange Securities, and shall have made such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form S-4 or other appropriate form under the 1933 Act available and (D) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency which might materially with respect to the Exchange Offer which, in the Company's judgment, would reasonably be expected to impair the ability of the Issuers Company to proceed with the Exchange Offer or Offer. The Company shall use its reasonable best efforts to inform the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation Initial Purchasers of the Exchange Offer or Private Exchange. The Exchange Notes names and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements addresses of the Commission Holders to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason whom the Exchange Offer is not consummated within 180 days of the Issue Datemade, (iii) any Holder (other than and the Initial Purchasers) is prohibited by law or Purchasers shall have the right, subject to applicable interpretations securities laws, to contact such Holders and otherwise facilitate the tender of the staff of the Commission or is otherwise ineligible from participating Registrable Securities in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Reliant Energy Resources Corp)
Exchange Offer. (a) Unless To the Exchange Offer would violate extent not prohibited by any applicable law or any applicable interpretation of the staff of the CommissionSEC, the Issuers Company shall (iA) prepare and, on or prior to 60 days after the date of original issuance of the Notes (the "Issue Date"), ---------- file with the SEC a Registration Statement (under the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form Securities Act with respect to a registered an offer (by the “Exchange Offer”) Company to exchange any and all the holders of the Registrable Notes to issue and deliver to such holders, in exchange for Notes, a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (iiB) use their commercially reasonable its best efforts to cause the Registration Statement relating to the Exchange Offer Registration Statement to be declared effective by the SEC under the Securities Act and (iii) use their commercially reasonable efforts on or prior to consummate the Exchange Offer within 180 150 days after the Issue Date. Upon , and (C) commence the Exchange Offer Registration Statement being declared effective by and use its reasonable efforts to issue, on or prior to the CommissionConsummation Date, the Company will Exchange Notes. The offer and sale of the Exchange Notes in exchange for surrender of the Notes. The Company shall keep pursuant to the Exchange Offer open for shall be registered pursuant to the Securities Act on the appropriate form (the "Exchange Registration Statement") and duly registered ------------------------------- or qualified under all applicable state securities or Blue Sky laws and will comply with all applicable tender offer rules and regulations under the Exchange Act and state securities or Blue Sky laws. The Exchange Offer shall not less be subject to any condition, other than 20 Business Days (that the Exchange Offer does not violate any applicable law or longer if required by applicable law) after interpretation of the date notice staff of the SEC. Upon consummation of the Exchange Offer is mailed in accordance with this Section 2, the Company shall have no further registration obligations other than with respect to Holders(i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which Section 3(a)(iii) hereof applies. Each Holder that participates No securities shall be included in the Exchange Registration Statement other than the Exchange Notes.
(b) The Company may require each holder of Notes as a condition to its participation in the Exchange Offer will be required to represent to the Company and its counsel in writing (which may be contained in the applicable letter of transmittal) that at the time of the consummation of the Exchange Offer (i) any Exchange Notes to be received by it such holder will be acquired in the ordinary course of its business, (ii) it has such holder will have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, and (iii) it such holder is not an affiliate (as defined in Rule 405 under Affiliate of the Securities Act) of any Issuer orCompany, or if it is an affiliateAffiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act Act, to the extent applicable.
(c) If, (iv) if such Holder prior to consummation of the Exchange Offer, an Initial Purchaser holds any Notes acquired by it and having, or which are reasonably likely to be determined to have, the status of an unsold allotment in the initial or any other holder of Notes is not a broker-dealerentitled to participate in the Exchange Offer, it is not engaged inthe Company upon the request of such Initial Purchaser or any such holder shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and does not intend deliver to engage insuch Initial Purchaser and any such holder, in exchange (the "Private Exchange") ---------------- for such Notes held by such Initial Purchaser and any such holder, a distribution like principal amount of debt securities of the Company that are identical in all material respects to the Exchange Notes (the "Private Exchange Notes") (and (v) if such Holder is a broker-dealer that will receive ---------------------- which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes for its own account in exchange for Notes that were acquired shall bear the same CUSIP number as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such the Exchange Notes.
(bd) Unless the Exchange Offer would not be permitted by any applicable law or interpretation of the staff of the SEC, the Company shall mail the Exchange Offer Prospectus and appropriate accompanying documents, including appropriate letters of transmittal, to each holder of Notes providing, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Notes validly tendered will be accepted for exchange;
(ii) the date of acceptance for exchange (the "Exchange Date"), which ------------- date shall in no event be later than the Consummation Date (unless otherwise required by applicable law);
(iii) that holders of Notes electing to have a Note exchanged pursuant to the Exchange Offer will be required to surrender such Note, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the Exchange Date; and
(iv) that holders of Notes that do not tender all such securities pursuant to the Exchange Offer may no longer have any registration rights hereunder with respect to Notes not tendered. Promptly after the Exchange Date, the Company shall:
(i) accept for exchange all Notes or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer or the Private Exchange; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Notes or portions thereof so accepted for exchange by the Company, and issue, cause the Trustee under the Indenture (or the indenture pursuant to which the Exchange Notes are issued) to authenticate, and mail to each holder of Notes, Exchange Notes equal in principal amount to the principal amount of the Notes surrendered by such holder.
(e) The Company and the Initial Purchasers acknowledge that the staff of the Commission SEC has taken the position that any broker-dealer that elects to exchange owns Exchange Notes that were acquired received by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “"Participating Broker-Dealer”") may be deemed to be an “--------------------------- "underwriter” " within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that it is the staff of the Commission has taken the SEC staff's position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Broker- Dealer”), the Issuers agree Company agrees (x) to use their reasonable its best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), 6 months or such earlier date as all Requesting each Participating Broker-Dealers Dealer shall have notified the Company in writing that such Requesting Participating Broker-Dealers have Dealer has resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior (y) to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously comply with the delivery provisions of the Exchange Notes in the Exchange OfferSection 5 of this Agreement, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant they relate to the Exchange Offer and the Private Exchange;Exchange Registration Statement, and (z) to deliver to such Participating Broker-Dealer a "cold comfort" letter of the independent public accountants of the Company and a legal opinion as to matters reasonably requested by such Participating Broker-Dealer relating to the Exchange Registration Statement and the related Prospectus and any amendments or supplements thereto.
(2f) deliver or cause The Initial Purchasers shall have no liability to be delivered any Participating Broker-Dealer with respect to the Trustee for cancellation in accordance with any request made pursuant to Section 5(t) all Notes so accepted for exchange; and2(e).
(3g) cause Interest on the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditionsNotes will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, other than that (i) if no interest has been paid on the Exchange Offer or Private ExchangeNotes, as from the case may be, does not violate applicable law or any applicable interpretation date of the staff original issuance of the Commission, Notes.
(iih) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall may be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (Indenture, which in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and event shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of neither the Exchange Notes, the Private Exchange Notes or nor the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless The Company shall file with the Exchange Offer would violate applicable law or any applicable interpretation of SEC, no later than the staff of the CommissionFiling Date, the Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) of the Company (guaranteed by the Guarantor) that are identical in all material respects to the Notes (except that the Exchange Notes (and the Guarantor’s guarantee thereof) shall not contain terms no restrictive legend thereon. The Exchange Offer shall comply with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) all applicable tender offer rules and regulations under the Exchange Act and other applicable law. The Company shall use their commercially reasonable its best efforts to (x) cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and on or before the Effectiveness Date; (iiiy) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 30th day following the date on which the Exchange Offer Registration Statement is declared effective by the SEC. If, after the Exchange Offer Registration Statement is initially declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Notes thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, the Exchange Offer Registration Statement shall be deemed not to have become effective for purposes of this Agreement. Each Holder that participates in the Exchange Offer will be required required, as a condition to its participation in the Exchange Offer, to represent to the Company in writing (which may be contained in the applicable letter of transmittal) that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has 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 (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it and that such Holder is not an affiliate (as defined in Rule 405 under of the Company within the meaning of the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements . Upon consummation of the Securities Act Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to the extent applicableapply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers (iv) if such Holder is not a broker-dealer, it is not engaged inas defined), and does not intend the Company shall have no further obligation to engage in, a distribution of register Registrable Notes (other than Private Exchange Notes and (v) if such Holder is a broker-dealer that will receive other than in respect of any Exchange Notes for its own account as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such the Exchange NotesOffer Registration Statement.
(b) The Company and shall include within the Initial Purchasers acknowledge that Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” reasonably acceptable to the Holders, which shall contain a summary statement of the positions taken or policies made by the staff of the Commission has taken SEC with respect to the position that potential “underwriter” status of any broker-dealer that elects to exchange is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes that were acquired received by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within ), whether such positions or policies have been publicly disseminated by the meaning staff of the Securities Act SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and must deliver a regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus meeting the delivery requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from Act, including, to the original offering extent permitted by applicable policies and regulations of the Notes). The Company SEC, all Participating Broker-Dealers, and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing include a statement to the above effect and describing the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection compliance with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to The Company shall use their reasonable its best efforts to keep the Exchange Offer Registration Statement continuously effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for a such period of up time as is necessary to 210 comply with applicable law in connection with any resale of the Exchange Notes covered thereby; provided, however, that such period shall not exceed 180 days after the date on which the such Exchange Offer Registration Statement is declared effective, effective (or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof hereof) (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange NotesNotes and shall be guaranteed by the Guarantor. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. Interest on the Exchange Notes and the Private Exchange Notes will accrue from (A) the later of (i) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or (ii) if the Notes are surrendered for exchange on a date subsequent to the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment or (B) if no interest has been paid on the Notes, from the date of the original issuance of the Notes. In connection with the Exchange Offer, the Company shall:
(1) mail mail, or cause to be mailed mailed, to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(34) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day business day on which the Exchange Offer shall remain open; and
(45) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the CommissionSEC, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers Company and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem Company deems necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that If, (i) because of any changes change in law or the applicable in currently prevailing interpretations of the staff of the Commission do SEC, the Company is not permit the Issuers permitted to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than holder of Private Exchange Notes so requests in writing to the Initial Purchasers) is prohibited by law or Company within 60 days after the applicable interpretations consummation of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder Holder as an affiliate of any Issuerthe Company or the Guarantor within the meaning of the Securities Act), (v) then in the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status case of unsold allotments in an initial distribution or (vi) any Holder each of Private Exchange Notes so requests (each such event referred to in clauses (i) through to and including (viiv) of this sentence, a the Company shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Filing EventNotice”), then the Issuers ) and shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Standard Commercial Corp)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, the Issuers The Issuer shall (i) file a Registration Statement (the “"Exchange Offer Registration Statement”") within 90 days after the Issue Date with the Commission on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “"Exchange Notes”") that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially its reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act within 180 days after the Issue Date and (iii) use their commercially its reasonable best efforts to consummate the Exchange Offer within 180 210 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company Issuer will offer the Exchange Notes in exchange for surrender of the Notes. The Company Issuer shall keep the Exchange Offer open for not less than 20 Business Days 30 days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company Issuer in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer Act or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iii) it is not an affiliate of the Issuer, as defined in Rule 405 under the Securities Act, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and Notes, (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale resale of such Exchange NotesNotes and (vi) such Holder has full power and authority to transfer the Notes in exchange for the Exchange Notes and that the Issuer will acquire good and unencumbered title thereto free and clear of any liens, restrictions, charges or encumbrances and not subject to any adverse claims.
(b) The Company Issuer and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “"Participating Broker-Dealer”") may be deemed to be an “"underwriter” " within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company Issuer and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “"Requesting Participating Broker-Dealer”"), the Issuers agree Issuer agrees to use their its reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up not to 210 exceed 180 days after the date on which the Exchange Offer Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof (such period, the “"Applicable Period”"), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company Issuer in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company Issuer shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder Initial Purchaser or any Holder, as the case may be, holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company Issuer upon the request of the Initial Purchasers or any such Holder Holder, as the case may be, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasers or any such Holder, as the case may be, in exchange (the “"Private Exchange”") for such Notes held by the Initial Purchasers or any such Holder, as the case may be, a like principal amount of notes (the “"Private Exchange Notes”") of the Company Issuer that are identical in all material respects to the Exchange NotesNotes except that the Private Exchange Notes may be subject to restrictions on transfer and bear a legend to such effect. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. For each Note surrendered in the Exchange Offer, the Holder will receive an Exchange Note having a principal amount equal to that of the surrendered Note. Interest on each Exchange Note and Private Exchange Note issued pursuant to the Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the Issue Date. Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuer shall have no further registration obligations other than the Issuer's continuing registration obligations with respect to (i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which clause (c)(iii) of this Section 2 applies. In connection with the Exchange Offer, the Company Issuer shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company Issuer shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn by the Holders pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each such Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Registrable Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Issuer to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers Issuer and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem Issuer deems necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indenture. The Exchange Notes and the Private Exchange Notes will be guaranteed by the Subsidiary Guarantors to the same extent as the Notes. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter. The Issuer will cause the Subsidiary Guarantors to become co-registrants under the Exchange Offer Registration Statement with respect to the Guarantees.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers Issuer to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 210 days of the Issue Date, (iii) any Holder (Holder, other than the Initial Purchasers) , notifies the Issuer prior to the 20th Business Day following the consummation of the Exchange Offer that it is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that who participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), the Issuer within the meaning of the Securities Act) or (v) the Initial Purchasers Purchaser so request requests with respect to Notes or Private Exchange Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (viv) of this sentence, a “"Shelf Filing Event”"), then the Issuers Issuer shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Range Resources Corp)
Exchange Offer. (a) Unless ▇▇▇▇▇ (▇▇▇▇▇ ▇▇an Private Exchange Notes and Exchange Notes held by Participating Broker-Dealers) pursuant to Section 3 of this Agreement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Registration Statement a section entitled "Plan of Distribution," reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 promulgated under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer would violate applicable law (a "Participating Broker-Dealer"), whether such positions or any applicable interpretation policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the reasonable judgment of the Initial Purchasers, represent the prevailing views of the staff of the Commission, SEC. Such "Plan of Distribution" section shall also allow the Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all use of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in Prospectus by all material respects Persons subject to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Company will offer the Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders. Each Holder that participates in the Exchange Offer will be required to represent to the Company in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicableAct, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “including all Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act Dealers, and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing include a statement to the above effect and describing the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements . Each of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to shall use their its reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for a such period of up time as such Persons must comply with such requirements in order to 210 days after the date on which resell the Exchange Registration Statement is declared effectiveNotes, provided that such period shall not exceed 180 days (or such longer period if extended pursuant to the penultimate last paragraph of Section 5 hereof 5) (such period, the “"Applicable Period”"), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds the Initial Purchasers hold any Notes acquired by it that havethem and having, or that which are reasonably likely to be determined to have, the status of as an unsold allotment in an the initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company Issuers upon the request of any such Holder shall Initial Purchasers shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such HolderInitial Purchasers, in exchange (the “"Private Exchange”") for such the Notes held by any such Holder10 -8- Initial Purchasers, a like principal amount of notes (the “Private Exchange Notes”) debt securities of the Company Issuers that are identical in all material respects to the Exchange Notes. The Notes (the "Private Exchange Notes shall be Notes") (and which are issued pursuant to the same indenture as the Exchange Notes) except for the placement of a restrictive legend on the Private Exchange Notes. If possible, the Private Exchange Notes and shall bear the same CUSIP number as the Exchange Notes. Interest on the Exchange Notes and Private Exchange Notes will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the Issue Date. In connection with the Exchange Offer, the Company Issuers shall:
(1i) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2ii) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;; and
(3iii) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m.the close of business, New York City time, on the last Business Day business day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and or the Private Exchange, if anyas the case may be, the Company Issuers shall:
(1i) accept for exchange all Notes validly and all Series C/D Notes tendered and not validly withdrawn pursuant to the Exchange Offer and or the Private Exchange;
(2ii) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes and Series C/D Notes so accepted for exchange; and
(3iii) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal pal amount to the Notes Notes, or the Series C/D Notes, of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall may be issued under (i) the Indenture or (ii) an indenture substantially identical in all material respects to the Indenture (Indenture, which in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall event will provide that (1) the Exchange Notes shall will not be subject to the transfer restrictions set forth in the Indenture and (2) the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall will have the right to vote and consent give consents together on all matters presented to such holders for votes or consents as one class and that none of neither the Exchange Notes, the Private Exchange Notes or nor the Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Transwestern Publishing Co LLC)
Exchange Offer. (a) Unless To the Exchange Offer would violate extent not prohibited by any applicable law or any applicable interpretation interpretations of the staff of the CommissionSEC, the Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration Statement”) with the Commission on an appropriate registration form with respect to a registered offer (any Notes, if any, that on the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect theretoRegistration Trigger Date are Transfer Restricted Notes, the “Exchange Notes”) that are identical in all material respects to Company and the Notes (except that the Exchange Notes Subsidiary Guarantors shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their commercially reasonable efforts to (X) cause to be filed and to become effective an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Transfer Restricted Notes for Exchange Notes and (Y) have such Registration Statement remain effective until 90 days after the last Exchange Date for use by one or more Participating Broker Dealers if one or more broker dealers notify the Company in writing that they anticipate that they will be Participating Broker Dealers. The Company and the Subsidiary Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement to be is declared effective under by the Securities Act SEC and (iii) use their commercially reasonable efforts to consummate complete the Exchange Offer within 180 not later than 45 days after such effective date.
(b) The Company and the Issue Date. Upon Subsidiary Guarantors shall, for the benefit of the Holders, at the Company’s and Subsidiary Guarantors’ cost, commence the Exchange Offer Registration Statement being declared effective Offer, if any, by mailing the Commissionrelated Prospectus, the Company will offer the Exchange Notes appropriate letters of transmittal and other accompanying documents to each Holder stating, in exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not less than 20 Business Days (or longer if addition to such other disclosures as are required by applicable law, substantially the following:
(i) after the date notice of that the Exchange Offer is mailed being made pursuant to Holders. Each this Agreement and that all Transfer Restricted Notes validly tendered and not properly withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 Business Days from the date such notice is mailed) (the “Exchange Dates”);
(iii) that any Transfer Restricted Notes not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder that participates in electing to have a Transfer Restricted Note exchanged pursuant to the Exchange Offer will be required to represent (A) surrender such Transfer Restricted Note, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the Depositary, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) sending to the institution and at the address specified in the notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Transfer Restricted Notes delivered for exchange and a statement that such Holder is withdrawing its election to have such Transfer Restricted Notes exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the Depositary.
(c) Upon the effectiveness of the Exchange Offer Registration Statement, if any, the Company and the Subsidiary Guarantors shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Transfer Restricted Notes for Exchange Notes (assuming that such Holder makes representations and warranties to the Company in writing that (ia) it is not an affiliate of the Company within the meaning of Rule 405 under the 1933 Act or, if an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the 1933 Act and will provide information to be included in a Shelf Registration Statement in order to have its Exchange Notes included in such Shelf Registration Statement, (b) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (ivc) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, a the distribution of the Exchange Notes and Notes, (vd) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Transfer Restricted Notes that were acquired as a result of market-making or other trading activities, it then such broker-dealer will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(bor, to the extent permitted by law, make available a Prospectus) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers and (e) it has no arrangements or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection understandings with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled Person to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery distribution of the Exchange Transfer Restricted Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to or the Exchange Notes. The Private ) to transfer such Exchange Notes shall be issued pursuant to from and after their receipt without any limitations or restrictions under the same indenture as the Exchange Notes 1933 Act and bear the same CUSIP number as the under state securities or blue sky laws.
(d) The Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 5(t) all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA Trust Indenture Act of 1939, as amended (the “TIA”), or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(ce) In As soon as practicable after the event that close of the Exchange Offer, the Company and the Subsidiary Guarantors shall:
(i) accept for exchange all Transfer Restricted Notes duly tendered and not validly withdrawn pursuant to the Exchange Offer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) deliver to the Trustee for cancellation all Transfer Restricted Notes so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver Exchange Notes to each Holder of Transfer Restricted Notes so accepted for exchange in a principal amount equal to the principal amount of the Transfer Restricted Notes of such Holder so accepted for exchange.
(f) Interest on each Exchange Note, including Additional Interest, will accrue (a) from the later of (i) the last date on which interest was paid on the Transfer Restricted Notes surrendered in exchange therefor or (ii) if the Transfer Restricted Notes are surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (b) if no interest has been paid on the Transfer Restricted Notes, from the date of issuance. If requested in writing the Company 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, but not the obligation, to contact such Holders and otherwise facilitate the tender of Transfer Restricted Notes in the Exchange Offer.
(g) The Company and the Subsidiary Guarantors shall use 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 Offer shall not be subject to any changes in conditions, other than (1) the Exchange Offer does not violate any applicable law or the applicable interpretations of the staff of the Commission do not permit SEC, (2) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency with respect to the Issuers to effect Exchange Offer and (3) all governmental approvals shall have been obtained that the Company deems necessary for the consummation of the Exchange Offer, (ii) for any reason the Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Remington Arms Co Inc/)
Exchange Offer. (a) Unless To the Exchange Offer would violate extent not prohibited by any applicable law or any applicable interpretation policies or interpretations of the staff of the CommissionStaff, the Issuers Issuer and the Guarantors shall (i) file within 180 days (or, if the 180th day is not a Registration Statement (Business Day, the “next Business Day thereafter) after the Closing Date, cause to be filed an Exchange Offer Registration Statement”) with Statement covering an offer to the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) Holders to exchange any and all of the Registrable Notes Transfer Restricted Securities for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “Exchange Notes”) that are identical in all material respects to the Notes (except that the Exchange Notes shall not contain terms with respect to transfer restrictions or Liquidated Damages upon a Registration Default)Securities, (ii) use their respective commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act within 270 days (or, if the 270th day is not a Business Day, the next Business Day thereafter) after the Closing Date (the “Effectiveness Target Date”) and remain effective until the closing of the Exchange Offer, (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 180 days as soon as practicable after the Issue Date. Upon effectiveness of the Exchange Offer Registration Statement being declared effective by the CommissionStatement, the Company will offer the Exchange Notes Securities in exchange for surrender of the Notes. The Company shall Securities and (iv) keep the Exchange Offer open for not less than 20 Business Days 30 days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to the Holders. Each The Issuer and the Guarantors shall use their respective commercially reasonable efforts to complete the Exchange Offer on the earliest practicable date after the Exchange Offer Registration Statement has become effective, but in any event on or prior to the 360th day after the Closing Date, or longer if required by the federal securities laws. The Issuer and the Guarantors shall commence the Exchange Offer by promptly mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that participates in the Exchange Offer is being made pursuant to this Agreement and that all Transfer Restricted Securities validly tendered and not properly withdrawn will be accepted for exchange;
(ii) the date of acceptance for exchange (which shall be a period of at least 30 days from the date such notice is mailed) (the “Exchange Date”);
(iii) that any Transfer Restricted Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement;
(iv) that any Holder electing to have a Transfer Restricted Security exchanged pursuant to the Exchange Offer will be required to surrender such Transfer Restricted Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, prior to the close of business on the Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the 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 aggregate principal amount of Transfer Restricted Securities delivered for exchange and a statement that such Holder is withdrawing its election to have such Securities exchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company in writing Issuer and the Guarantors that (i) any Exchange Notes Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act, (iii) it is not an affiliate “affiliate” (as defined in within the meaning of Rule 405 under the Securities Act) of the Issuer or any Issuer orGuarantor, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder it either (A) is not a broker-dealer, dealer or (B) it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer Securities for its own account as a result part of its market-making or other trading activities for Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must will deliver a prospectus meeting the requirements of the Securities Act Prospectus in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Company and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective for a period of up to 210 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the “Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Company in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or if any Holder is not entitled to participate in the Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company that are identical in all material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulationsSecurities. As soon as practicable after the close of Exchange Date, the Exchange Offer Issuer and the Private Exchange, if any, the Company Guarantors shall:
(1i) accept for exchange all Notes Transfer Restricted Securities or portions thereof validly tendered and not validly properly withdrawn pursuant to the Exchange Offer and the Private Exchange;Offer; and
(2ii) deliver deliver, or cause to be delivered delivered, to the Trustee for cancellation in accordance with Section 5(t) all Notes Transfer Restricted Securities or portions thereof so accepted for exchange; and
(3) exchange by the Issuer and issue, and cause the Trustee to promptly authenticate and deliver promptly to each Holder of NotesHolder, Exchange Notes or Private Exchange Notes, as the case may be, Securities equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation principal amount of the staff of the Commission, (ii) no action or proceeding shall have been instituted or threatened in Transfer Restricted Securities surrendered by such Holder. Notwithstanding any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notesother provisions hereof, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes Issuer will have the right to vote or consent as a separate class on any matter.
(c) In the event ensure that (i) any changes Exchange Offer Registration Statement complies in law or all material respects with the applicable interpretations of Securities Act and the staff of the Commission do not permit the Issuers to effect the Exchange Offerrules and regulations thereunder, (ii) for any reason the Exchange Offer is Registration Statement does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not consummated within 180 days of the Issue Date, misleading and (iii) any Holder (other than Prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such Prospectus, does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the Initial Purchasers) is prohibited by law or statements therein, in the applicable interpretations light of the staff of the Commission or is otherwise ineligible from participating in the Exchange Offercircumstances under which they were made, (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration Statement pursuant to Section 3 hereofmisleading.
Appears in 1 contract
Sources: Exchange and Registration Rights Agreement (Mariner Energy Resources, Inc.)