Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer shall: (i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents; (ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”); (iii) utilize the services of the Trustee for the Exchange Offer; (iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged; (v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and (vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall: (i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer; (ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and (iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 4 contracts
Sources: Registration Rights Agreement (Twenty-First Century Fox, Inc.), Registration Rights Agreement (News Corp), Registration Rights Agreement (News Corp)
Exchange Offer. To The Company and the extent not prohibited by any applicable law or applicable SEC policy, the Issuer Guarantors shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost and the Guarantors’ cost, use their commercially reasonable efforts to (iA) prepare and file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time1933 Act, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 270 days after following the Closing TimeDate. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Guarantors shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with and has made representations to the Company to that effect) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company and the Guarantors shall:
(ia) mail as promptly as practicable after the Exchange Offer Registration Statement has been declared effective under the 1933 Act to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Standard Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Registrable Securities exchanged;
(ve) notify each Holder that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company and the Guarantors upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company, guaranteed by the Guarantors on a senior subordinated basis, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that the Exchange Securities, the Private Exchange Securities and the Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, the Private Exchange Securities or the Securities will have the right to vote or consent as a separate class on any matter. The Private Exchange Securities shall be of the same series as, as and the Issuer Company and the Guarantors shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. Neither the Company nor any of the Guarantors shall have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company and the Guarantors shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities shall be in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act▇▇▇▇ ▇▇▇) of the Exchange SecuritiesSecurities and shall have made such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form S-4 or other appropriate form under the 1933 Act available and (iv) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offer or the Private Exchange which, in the Company’s and the Guarantors’ judgment, would reasonably be expected to impair the ability of the Company and the Guarantors to proceed with the Exchange Offer or the Private Exchange. The Issuer Company and the Guarantors shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 4 contracts
Sources: Registration Rights Agreement (Sonic Automotive Inc), Registration Rights Agreement (Sonic Automotive Inc), Registration Rights Agreement (Sonic Automotive Inc)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost cost, (i) file cause to be filed with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its all commercially reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 270 days after the Closing Time, Issue Date and (iii) use its reasonable best efforts to have such Registration Statement remain effective until promptly offer the closing Exchange Notes in exchange for surrender of the Notes upon the effectiveness of the Exchange Offer Registration Statement, and (iv) commence consummate the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 within 315 days after the Closing TimeIssue Date. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, unless the Exchange Offer would not be permitted by applicable law or applicable interpretation of the staff of the SEC, it being understood that the objective of such Exchange Offer is to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Securities, if issued) for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange SecuritiesNotes) (any Holder meeting all such requirements, hereinafter an “Eligible Holder”), with and to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail furnish to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documentsdocuments (together, the “Notice”);
(ii) use all commercially reasonable efforts to keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice Notice thereof is mailed furnished to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities withdraw, at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, any Notes tendered for exchange by sending to the institution specified in the notice Notice, a telegram, telex, facsimile transmission or letter letter, received before aforesaid time, setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(v) notify each Holder by means of the Notice that any Security Note not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company shall:
(i) accept for exchange all Securities Notes or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Notes or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to the Depositary (or if, the Exchange Notes are in certificated form, each Holder), a new Exchange Security or Private Exchange Security, as the case may be, Notes and equal in principal amount to the principal amount of the Securities Notes surrendered by such Holder and accepted for exchangeHolder. Interest on each Exchange Note issued pursuant to the Exchange Offer will accrue from the last date on which interest was paid on the Note surrendered in exchange therefor or, if no interest has been paid on such Note, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its all commercially reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act. Except as set forth herein, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECSEC and that each Holder tendering Notes for exchange shall be an Eligible Holder. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, without limitation, representations that such Holder (i) it is not an affiliate of the Issuer within Company, (ii) the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee Each Holder hereby acknowledges and the Initial Purchasers, of the names agrees that any Participating Broker-Dealer and addresses of the Holders to whom any such Holder using the Exchange Offer is madeto participate in a distribution of the Exchange Notes: (1) could not under SEC policy as in effect on the date of this Agreement rely on the position of the SEC enunciated in ▇▇▇▇▇ & ▇▇▇▇ LLP (available February 7, 1997), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC’s letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters (including, without limitation, any no-action letter obtained based on the Initial Purchasers shall have representations in clause (i) above), and (2) must comply with the right to contact registration and prospectus delivery requirements of the Securities Act in connection with the secondary resale transaction and that such Holders a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Item 507 and otherwise facilitate 508, as applicable, of Regulation S-K, the tender SEC standard instructions for filing forms under the Securities Act, if the resales are of Registrable Securities Exchange Notes obtained by such Holder in exchange for Notes acquired by such Holder directly from the Exchange OfferCompany. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issuedpursuant to Section 2(b)(iii)) pursuant to Section 2(b) hereofof this Agreement.
Appears in 3 contracts
Sources: Registration Rights Agreement (Oncor Electric Delivery Co LLC), Registration Rights Agreement (Oncor Electric Delivery Co LLC), Registration Rights Agreement (Oncor Electric Delivery Co LLC)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Issuers shall, for the benefit of the Holders and Holders, at the Issuer’s cost Issuers' cost, (iA) prepare and, as soon as practicable but not later than 45 days following the Closing Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Transfer Restricted Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its their reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after 150 days from the Closing TimeDate, (iiiC) use its their reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence the Exchange Offer and use its their reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in cause the Exchange Offer not later than 225 to be consummated on or prior to 30 business days after following the Closing Timedate on which the Exchange Offer Registration Statement was declared effective by the SEC. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Issuers shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Transfer Restricted Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Issuers within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Transfer Restricted Securities acquired directly from the Issuer or an affiliate of the Issuer Issuers for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s 's business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) and to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Issuers shall:
(ia) mail or cause to be mailed as promptly as reasonably practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Transfer Restricted Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Time), on the second to last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Transfer Restricted Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchanged;
(ve) notify each Holder that any Transfer Restricted Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, distribution and determine upon the request advice of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities external counsel that it is ineligible to participate in the Exchange Offer, as soon as practicable upon receipt by the Issuers of a written request from such Initial Purchaser, the Issuers shall issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Issuers, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “"Private Exchange Securities”"). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the "TIA"), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that the Exchange Securities, the Private Exchange Securities and the Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, the Private Exchange Securities or the Securities will have the right to vote or consent as a separate class on any matter. The Private Exchange Securities shall be of the same series as, and the Issuer Issuers shall use its commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as, the Exchange Securities. The Issuers shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Issuers shall:
(i) accept for exchange all Transfer Restricted Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Transfer Restricted Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Transfer Restricted Securities so accepted for exchange in a principal amount equal to the principal amount of the Transfer Restricted Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Transfer Restricted Securities surrendered in exchange therefor or, if no interest has been paid on the Transfer Restricted Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Transfer Restricted Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Transfer Restricted Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain shall have made customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act▇▇▇▇ ▇▇▇) of the Exchange Securities, and shall have made such other representations as may be reasonably necessary under applicable SEC rules, policy, regulations or interpretations to render the use of Form S-4 or other appropriate form under the 1933 Act available and (iv) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency or body with respect to the Exchange Offer or the Private Exchange which, in the Issuers' judgment, would reasonably be expected to impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange. The Issuer Issuers shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Transfer Restricted Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 2 contracts
Sources: Note Registration Rights Agreement (Aladdin Gaming Enterprises Inc), Note Registration Rights Agreement (Aladdin Gaming Enterprises Inc)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost cost, (i) file cause to be filed with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its all commercially reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 270 days after the Closing Time, Issue Date and (iii) use its reasonable best efforts to have such Registration Statement remain effective until promptly offer the closing Exchange Notes in exchange for surrender of the Notes upon the effectiveness of the Exchange Offer Registration Statement, and (iv) commence consummate the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 within 315 days after the Closing TimeIssue Date. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, unless the Exchange Offer would not be permitted by applicable law or applicable interpretation of the staff of the SEC, it being understood that the objective of such Exchange Offer is to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Securities, if issued) for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange SecuritiesNotes) (any Holder meeting all such requirements, hereinafter an “Eligible Holder”), with and to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail furnish to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documentsdocuments (together, the “Notice”);
(ii) use all commercially reasonable efforts to keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice Notice thereof is mailed furnished to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities withdraw, at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, any Notes tendered for exchange by sending to the institution specified in the notice Notice, a telegram, telex, facsimile transmission or letter letter, received before aforesaid time, setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(v) notify each Holder by means of the Notice that any Security Note not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company shall:
(i) accept for exchange all Securities Notes or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Notes or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to the Depositary (or if, the Exchange Notes are in certificated form, each Holder), a new Exchange Security or Private Exchange Security, as the case may be, Notes equal in principal amount to the principal amount of the Securities Notes surrendered by such Holder and accepted for exchangeHolder. Interest on each Exchange Note issued pursuant to the Exchange Offer will accrue from the last date on which interest was paid on the Note surrendered in exchange therefor or, if no interest has been paid on such Note, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its all commercially reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act. Except as set forth herein, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECSEC and that each Holder tendering Notes for exchange shall be an Eligible Holder. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, without limitation, representations that such Holder (i) it is not an affiliate of the Issuer within Company, (ii) the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee Each Holder hereby acknowledges and the Initial Purchasers, of the names agrees that any Participating Broker-Dealer and addresses of the Holders to whom any such Holder using the Exchange Offer is madeto participate in a distribution of the Exchange Notes: (1) could not under SEC policy as in effect on the date of this Agreement rely on the position of the SEC enunciated in ▇▇▇▇▇ & ▇▇▇▇ LLP (available February 7, 1997), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC’s letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters (including, without limitation, any no-action letter obtained based on the Initial Purchasers shall have representations in clause (i) above), and (2) must comply with the right to contact registration and prospectus delivery requirements of the Securities Act in connection with the secondary resale transaction and that such Holders a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Item 507 and otherwise facilitate 508, as applicable, of Regulation S-K, the tender SEC standard instructions for filing forms under the Securities Act, if the resales are of Registrable Securities Exchange Notes obtained by such Holder in exchange for Notes acquired by such Holder directly from the Exchange OfferCompany. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issuedpursuant to Section 2(b)(iii)) pursuant to Section 2(b) hereofof this Agreement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Oncor Electric Delivery Co LLC), Registration Rights Agreement (Oncor Electric Delivery Co LLC)
Exchange Offer. To (a) After the extent not prohibited by any applicable law Company's Initial Public Offering, or applicable SEC policyin the event that, as of the date that is 180 days following the date hereof, neither the Company nor Inter*Act has commenced an Initial Public Offering, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost Company shall (i) file cause to be filed with the SEC within 90 days after Commission in no later than the Closing Time an Target Filing Date, a Registration Statement with respect to the Exchange Offer (the "Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesStatement"), (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective as soon as practicable after the Target Filing Date or such earlier filing date, but in no event later than the Target Effective Date and (iii) use best efforts to Consummate the Exchange Offer as soon as practicable after the Target Effective Date or such earlier effective date, but in no event later than the Target Consummation Date. The Exchange Offer will be registered under the Securities Act by on the SEC on appropriate form and duly registered or prior to the 180th day after the Closing Time, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 qualified under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under applicable state securities or “blue sky” sky laws and will comply with all applicable tender offer rules and regulations under the Exchange Act and state securities or blue sky laws. In connection with the Exchange Offer, the Issuer shall:
(i) The Company shall mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of who exchanges Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the an Exchange Offer will shall be required deemed to make certain customary representations in connection therewithhave represented, including representations and at the request of the Company shall provide a letter confirming, that (A) such Holder is not an affiliate "affiliate" of the Issuer Company within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that (B) any Exchange Securities to be received by it such Holder will be acquired in the ordinary course of business and that its business, (C) such Holder will not, at the time of the commencement Consummation of the Exchange Offer it has no Offer, have any arrangement or understanding with any Person or the intent to enter into any such arrangement or understanding to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities and (D) if such Holder is a broker-dealer, such Holder acquired its Registrable Securities for its own account as a result of market-making or other trading activities and such Holder will deliver a prospectus in connection with any resale of Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation Any Holder (x) who refuses to provide a letter requested in connection with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the an Exchange Offer is made, and pursuant to the Initial Purchasers shall have the right preceding sentence or (y) who refuses to contact such Holders and otherwise facilitate the tender of Registrable Securities participate in an Exchange Offer other than in the Exchange Offercircumstances described in Section 2(b)(i) or (ii) below, shall not be entitled to cause the Company to effect a "shelf" registration pursuant to Section 3 hereof. Upon consummation The Company agrees to supplement or amend the Registration Statement filed in respect of the Exchange Offer in accordance with this Section 2(a)to the extent required by applicable law, rules or regulations or by the provisions of this Agreement shall continue instructions applicable to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held the registration form used by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.Company for
Appears in 2 contracts
Sources: Exchange and Registration Rights Agreement (Inter Act Systems Inc), Exchange and Registration Rights Agreement (Inter Act Systems Inc)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Corporation and the Trust shall, for the benefit of the Holders and Holder, at the Issuer’s cost Corporation's cost, use its best efforts to (i) file cause to be filed with the SEC within 90 days by the March 31 after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day April 30 after the Closing Time, Issue Date and (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (or longer if required by applicable law) after the closing date notice of the Exchange Offer and (iv) commence is mailed to the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeHolders. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Corporation and the Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Debentures or a like liquidation amount of Exchange Capital Securities, if issued) for together with the Exchange Securities Guarantee, as applicable (assuming that such Holder is not an affiliate of the Issuer Corporation within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Corporation for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Corporation and the Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interestinterest or accumulate distributions, as the case may be, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior If the Initial Purchaser determines upon advice of its outside counsel that it is not eligible to consummation of participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Securities constituting any Securities acquired by it and such Securities have the status portion of an unsold allotment in the initial distribution, as soon as practicable upon receipt by the Issuer shall, upon Corporation and the Trust of a written request of such from the Initial Purchaser, simultaneously with the delivery of Corporation and the Exchange Securities in the Exchange OfferTrust, as applicable, shall issue and deliver to such the Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such the Initial Purchaser, a like liquidation amount of Capital Securities of the Trust, together with the Exchange Guarantee, or a like principal amount of debt securities the Subordinated Debentures of the Issuer Corporation, as applicable, that are identical (except that such securities shall may bear appropriate a customary legend with respect to restrictions on transfer restrictionspursuant to the Securities Act) to the Exchange Securities (the “"Private Exchange Securities”). The Private ") and which are issued pursuant to the Indenture, the Declaration or the Guarantee (which provides that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture or the Declaration, as applicable, and that the Exchange Securities, if anythe Private Exchange Securities and the Securities will vote and consent together on all matters as one class and that neither the Exchange Securities, shall be issued under the IndenturePrivate Exchange Securities nor the Securities will have the right to vote or consent as a separate class on any matter). The Private Exchange Securities shall be of the same series as, as the Exchange Securities and the Issuer shall use its reasonable best efforts Corporation and the Trust will seek to have cause the CUSIP Service Bureau to issue the same CUSIP Numbers for the Private Exchange Securities bear as for the same CUSIP number as Exchange Securities issued pursuant to the applicable Exchange SecuritiesOffer. As soon as practicable after the close of the Exchange Offer and/or and, if applicable, the Private Exchange, the Corporation and the Trust, as the case may berequires, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the applicable Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and Corporation; and
(iii) issue, and cause the applicable Trustee under the Indenture Indenture, the Declaration or the Guarantee, as applicable, to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may beapplicable, equal in principal amount to the principal amount of the Subordinated Debentures or equal in liquidation amount to the liquidation amount to the Capital Securities (together with the guarantee thereof) as are surrendered by such Holder Holder. Distributions on each Exchange Capital Security and accepted for exchangeinterest on each Exchange Debenture and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last date on which a Distribution or interest was paid on the Capital Security or the Subordinated Debenture surrendered in exchange therefore or, if no Distribution or interest has been paid on such Capital Security or Subordinated Debenture, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Corporation and the Trust shall use its reasonable their best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, in the case of any Holder of Capital Securities, representations that such Holder (i) it is not an affiliate of the Issuer within Trust or the meaning of Rule 405 under Corporation, (ii) the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Capital Securities. The Issuer Corporation and the Trust shall inform the Initial PurchasersPurchaser, after consultation with the Trustee and the Initial PurchasersTrustee, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Purchaser shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the 2(a),the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer Corporation and the Trust shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofof this Agreement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Hubco Inc), Registration Rights Agreement (Hubco Inc)
Exchange Offer. To Each of the extent not prohibited by any applicable law or applicable SEC policy, Company and the Issuer Guarantor shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost and the Guarantor's cost, (iA) use its reasonable best efforts to prepare and, as soon as practicable within 180 days following the Closing Date file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 270 days of the Closing TimeDate, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and Offer, (ivD) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in cause the Exchange Offer to be completed not later than 225 300 days after following the Closing TimeDate, (E) provided that the Preferred Securities meet the minimum listing requirements of the New York Stock Exchange at the time an Exchange Offer Registration Statement is declared effective, use their reasonable best efforts to list the Preferred Securities on the New York Stock Exchange within 30 days following the Exchange Offer Registration Statement being declared effective, and (F) for a period of 90 days following the consummation of the exchange offer, to make available a prospectus meeting the requirements of the 1933 Act to any such participating broker-dealer for use in connection with any resale of any exchange notes acquired in the exchange offer. If the Company has not completed the Exchange Offer within 365 days of the Closing Date, then the Company will file as promptly as practicable a Shelf Registration Statement (as described in Section 2.2 hereof). The Exchange Securities will be issued under the Registrar and Transfer Agency Agreement. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Guarantor shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer within the meaning of “affiliate” (as such term is defined in Rule 405 under the Securities Act and 1▇▇▇ ▇▇▇) of the Company or the Guarantor (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer Company or an affiliate of the Issuer Guarantor for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and or under state securities or “blue sky” sky laws. Exchange Securities will be issued under the Exchange Offer as evidence of the same continuing rights and preferences under the Preferred Securities and the Guarantee. Under no circumstances will the surrender of the Preferred Securities and the issue of Exchange Securities constitute new securities or obligate the Company and the Guarantor to redeem the Preferred Securities. In connection with the Exchange Offer, the Issuer Company and the Guarantor shall:
(ia) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business5:00 PM, New York City time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Preferred Securities exchanged;
(ve) notify each Holder that any Security Registrable Securities not tendered will remain outstanding and continue to accrue interestoutstanding, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds any Preferred Securities acquired by it and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company and the Guarantor upon the request of such the Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such the Initial Purchaser in exchange (the “Private Exchange”) for the Preferred Securities held by such the Initial Purchaser, a like principal amount number of debt securities Preferred Securities of the Issuer Company, unconditionally guaranteed by the Guarantor as to payment of distributions (“remuneración”), on the Preferred Securities, as well as payment of the redemption price for the Preferred Securities upon any redemption thereof and the liquidation distribution of the Preferred Securities upon the winding-up or liquidation of the Company, that are identical (except that such securities Preferred Securities and Guarantee shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureRegistrar and Transfer Agency Agreement or (ii) a registrar and transfer agency agreement identical in all material respects to the Registrar and Transfer Agency Agreement, and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Registrar and Transfer Agency Agreement but that the Private Exchange Securities shall be subject to such transfer restrictions. The Registrar and Transfer Agency Agreement or such registrar and transfer agency agreement shall provide that the Exchange Securities, the Private Exchange Securities and the Preferred Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, the Private Exchange Securities or the Preferred Securities will have the right to vote or consent as a separate class on any matter. The Private Exchange Securities shall be of the same series as, and the Issuer Company shall use its reasonable best efforts to have ensure that the Private Exchange Securities bear the same CUSIP number as as, the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company and the Guarantor shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Registrable Securities duly properly tendered and not validly withdrawn pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, to the Trustee Registrar and Transfer Agent for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture Registrar and Transfer Agent promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, to each Holder of Registrable Securities so accepted for exchange in number equal in principal amount to the principal amount number of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Distributions on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which distributions were paid on the Registrable Securities surrendered in exchange therefor or, if no distributions have been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the valid tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act1▇▇▇ ▇▇▇) of the Exchange SecuritiesSecurities and shall have made such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form F-4 or other appropriate form under the 1933 Act available and (iv) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offer or the Private Exchange which, in the judgment of the Company and the Guarantor, would reasonably be expected to impair the ability of the Company or the Guarantor to proceed with the Exchange Offer or the Private Exchange. The Issuer shall Company and the Guarantor shall, to the extent such information is available to the Company or the Guarantor, inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchaser of the names and addresses of the Holders to whom the Exchange Offer is made, subject to the right of any Holder to object to the disclosure of such information with respect to such Holder, and the Initial Purchasers Purchaser shall have the right right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a)Agreement, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, Company and the Issuer Guarantor shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof2.2 of this Agreement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Banco Santander Central Hispano Sa), Registration Rights Agreement (Santander Finance Preferred S.A. Unipersonal)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (i) file cause to be filed with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeIssue Date, and (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (or longer if required by applicable law) after the closing date notice of the Exchange Offer and (iv) commence is mailed to the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeHolders. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Securities, if issued) for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities) (any Holder meeting all such requirements, hereinafter an "Eligible Holder"), with and to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documentsdocuments (together, the "Notice");
(ii) use its reasonable best efforts to keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice Notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities withdraw, at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, any Notes tendered for exchange by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(v) notify each Holder by means of the Notice that any Security Note not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Broker- Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company shall:
(i) : accept for exchange all Securities Notes or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Notes or portions thereof so accepted for exchange by the Issuer, Company; and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, Notes equal in principal amount to the principal amount of the Securities Notes surrendered by such Holder and accepted for exchangeHolder. Interest on each Exchange Note issued pursuant to the Registered Exchange Offer will accrue from the last date on which interest was paid on the Note surrendered in exchange therefor or, if no interest has been paid on such Note, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECSEC and that each Holder tendering Notes for exchange shall be an Eligible Holder. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder (i) it is not an affiliate of the Issuer within Company, (ii) the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee Each Holder hereby acknowledges and the Initial Purchasers, of the names agrees that any Participating Broker-Dealer and addresses of the Holders to whom any such Holder using the Exchange Offer is madeto participate in a distribution of the Exchange Notes: (1) could not under SEC policy as in effect on the date of this Agreement rely on the position of the SEC enunciated in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC's letter to Shearman & Sterling dated July 2, 1993, and similar no- action letters (including any no-action letter obtained based on the Initial Purchasers shall have representations in clause (i) above), and (2) must comply with the right to contact registration and prospectus delivery requirements of the Securities Act in connection with the secondary resale transaction and that such Holders a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Item 507 and otherwise facilitate 508, as applicable, of Regulation S-K if the tender resales are of Registrable Securities Exchange Notes obtained by such Holder in exchange for Notes acquired by such Holder directly from the Exchange OfferCompany. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issuedpursuant to Section 2(b)(iii)) pursuant to Section 2(b) hereofof this Agreement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Texas Utilities Co /Tx/), Registration Rights Agreement (Texas Utilities Co /Tx/)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange SecuritiesNotes, if issued) for a like principal amount of Exchange SecuritiesNotes, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities Notes in exchange for all Registrable Securities (other than the Private Exchange SecuritiesNotes, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange SecuritiesNotes, if issued) for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Securi- ties Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange SecuritiesNotes), with such Exchange SecuritiesNotes, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail deliver to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities Notes in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities Notes (the “Private Exchange SecuritiesNotes”). The Private Exchange SecuritiesNotes, if any, shall be issued under the Indenture. The Private Exchange Securities Notes shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities Notes bear the same CUSIP number as the applicable Exchange SecuritiesNotes. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security Note or Private Exchange SecurityNote, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange SecuritiesNotes, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange SecuritiesNotes, if issued) for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange SecuritiesNotes, if issued, and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange SecuritiesNotes, if issued) pursuant to Section 2(b) hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (Twenty-First Century Fox, Inc.), Registration Rights Agreement (Twenty-First Century Fox, Inc.)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost cost, (i) file cause to be filed with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its all commercially reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time, Target Registration Date and (iii) use its reasonable best efforts to have such Registration Statement remain effective until promptly offer the closing Exchange Notes in exchange for surrender of the Notes upon the effectiveness of the Exchange Offer Registration Statement, and (iv) commence consummate the Exchange Offer and use its reasonable best efforts on or prior to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeConsummation Date. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, unless the Exchange Offer would not be permitted by applicable law or applicable interpretation of the staff of the SEC, it being understood that the objective of such Exchange Offer is to enable each Holder eligible and electing to exchange Registrable Securities for a like principal amount of Exchange Notes (other than Private Exchange Securities, if issuedof the applicable series) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange SecuritiesNotes) (any Holder meeting all such requirements, hereinafter an “Eligible Holder”), with and to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail furnish to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documentsdocuments (together, the “Notice”);
(ii) use all commercially reasonable efforts to keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice Notice thereof is mailed furnished to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities withdraw, at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, any Notes tendered for exchange by sending to the institution specified in the notice Notice a telegramletter or other generally accepted form of notice, telexreceived before aforesaid time, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder ▇▇▇▇▇▇ is withdrawing such Holder’s election to have such Securities Notes exchanged;
(v) notify each Holder by means of the Notice that any Security Note not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company shall:
(i) accept for exchange all Securities Notes or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Notes or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to the Depositary (or if, the Exchange Notes are in certificated form, each Holder), a new Exchange Security or Private Exchange Security, as Notes of the case may be, series and equal in principal amount to the respective series and principal amount of the Securities Notes surrendered by such Holder and accepted for exchange▇▇▇▇▇▇. Interest on each Exchange Note issued pursuant to the Exchange Offer will accrue from the last date on which interest was paid on the Note surrendered in exchange therefor or, if no interest has been paid on such Note, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its all commercially reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act. Except as set forth herein, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECSEC and that each Holder tendering Notes for exchange shall be an Eligible Holder. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, without limitation, representations that such Holder (i) it is not an affiliate of the Issuer within Company, (ii) the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee Each Holder hereby acknowledges and the Initial Purchasers, of the names agrees that any Participating Broker-Dealer and addresses of the Holders to whom any such Holder using the Exchange Offer is madeto participate in a distribution of the Exchange Notes: (1) could not under SEC policy as in effect on the date of this Agreement rely on the position of the SEC enunciated in Brown & Wood LLP (available February 7, 1997), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC’s letter to ▇▇▇▇▇▇▇▇ & Sterling dated July 2, 1993, and similar no-action letters (including, without limitation, any no-action letter obtained based on the Initial Purchasers shall have representations in clause (i) above), and (2) must comply with the right to contact registration and prospectus delivery requirements of the Securities Act in connection with the secondary resale transaction and that such Holders a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Items 507 and otherwise facilitate 508, as applicable, of Regulation S-K, the tender SEC standard instructions for filing forms under the Securities Act, if the resales are of Registrable Securities Exchange Notes obtained by such Holder in exchange for Notes acquired by such Holder directly from the Exchange OfferCompany. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issuedpursuant to Section 2(b)(iii) or 2(b)(iv)) pursuant to Section 2(b) hereofof this Agreement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Oncor Electric Delivery Co LLC), Registration Rights Agreement (Oncor Electric Delivery Co LLC)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and Holders, at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds any Securities acquired by it and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such the Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such the Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such the Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the Indenture or (ii) an indenture identical to the Indenture in all material respects and which, in either case, has been qualified under the TIA and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Securities, the Private Exchange Securities and the Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, the Private Exchange Securities or the Securities will have the right to vote or consent as a separate class on any matter. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as as, the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial PurchasersPurchaser, after consultation with the Trustee and the Initial PurchasersPurchaser, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Purchaser shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (News Corp), Registration Rights Agreement (News Corp)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyExcept as set forth in Section 2(b) below, the Issuer Corporation and the Trust shall, for the benefit of the Holders and Holders, at the Issuer’s cost Corporation's cost, use commercially reasonable efforts to (i) file cause to be filed with the SEC within 90 150 days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer relating to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeIssue Date, and (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (or longer if required by applicable law) after the closing date notice of the Exchange Offer and (iv) commence is mailed to the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeHolders. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Corporation and the Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Debentures or a like liquidation amount of Exchange Capital Securities, if issued) for together with the Exchange Securities Guarantee, as applicable (assuming that such Holder (i) is not an affiliate Affiliate of the Issuer within Trust or the meaning of Rule 405 under the Securities Act and Corporation, (ii) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Corporation for its own account, (iii) acquires the Exchange Securities in the ordinary course of such Holder’s 's business and (iv) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” lawssky laws (other than requiring minimum transfers in blocks having an aggregate principal or liquidation amount, as the case may be, of $100,000). In connection with the Exchange Offer, the Issuer Corporation and the Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interestinterest or accumulate distributions, as the case may be, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior If the Initial Purchaser determines upon advice of its outside counsel that it is not eligible to consummation of participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Securities constituting any Securities acquired by it and such Securities have the status portion of an unsold allotment in the initial distribution, as soon as practicable upon receipt by the Issuer shall, upon Corporation and the Trust of a written request of from such Initial Purchaser, simultaneously with the delivery of Corporation and the Exchange Securities in the Exchange OfferTrust, as applicable, shall issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like liquidation amount of Capital Securities of the Trust or, in the event the Trust is liquidated and Subordinated Debentures are distributed, a like principal amount of debt securities the Subordinated Debentures of the Issuer Corporation, together with the Exchange Guarantee, in each case that are identical (except that such securities shall may bear appropriate a customary legend with respect to restrictions on transfer restrictionspursuant to the Securities Act) to the Exchange Securities (the “"Private Exchange Securities”") and which are issued pursuant to the Indenture, the Declaration or the Guarantee (which provides that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture or the Declaration, as applicable (other than requiring minimum transfers in blocks having an aggregate principal or liquidation amount, as the case may be, of $100,000). The Private , and that the Exchange Securities, if anythe Private Exchange Securities and the Securities will vote and consent together on all matters as one class and that none of the Exchange Securities, shall be issued under the IndenturePrivate Exchange Securities and the Securities will have the right to vote or consent as a separate class on any matter). The Private Exchange Securities shall be of the same series as, as the Exchange Securities and the Issuer shall use its reasonable best efforts Corporation and the Trust will seek to have cause the CUSIP Service Bureau to issue the same CUSIP Numbers for the Private Exchange Securities bear as for the same CUSIP number as Exchange Securities issued pursuant to the applicable Exchange SecuritiesOffer. As soon as practicable after the close of the Exchange Offer and/or and, if applicable, the Private Exchange, the Corporation and the Trust, as the case may berequires, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the applicable Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and Corporation; and
(iii) issue, and cause the applicable Trustee under the Indenture Indenture, the Declaration or the Guarantee, as applicable, to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may beapplicable, equal in principal amount to the principal amount of the Subordinated Debentures or equal in liquidation amount to the liquidation amount of the Capital Securities (together with the guarantee thereof) as are surrendered by such Holder Holder. Distributions on each Exchange Capital Security and accepted for exchangeinterest on each Exchange Debenture and Private Exchange Security issued pursuant to the Exchange Offer and in the Private Exchange will accrue from the last date on which a Distribution or interest was paid on the Capital Security or the Subordinated Debenture surrendered in exchange therefor or, if no Distribution or interest has been paid on such Capital Security or Subordinated Debenture, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Corporation and the Trust shall use its reasonable their best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, in the case of any Holder of Capital Securities, representations that such Holder (i) it is not an affiliate Affiliate of the Issuer within Trust or the meaning of Rule 405 under Corporation, (ii) the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Capital Securities. The Issuer Corporation and the Trust shall inform the Initial PurchasersPurchaser, after consultation with the Trustee and the Initial Purchasersapplicable Trustees, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Purchaser shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer Corporation and the Trust shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) held by any Holder pursuant to Section 2(b) hereofof this Agreement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Mainstreet Bankgroup Inc), Registration Rights Agreement (Mainstreet Bankgroup Inc)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost cost, (i) file cause to be filed with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its all commercially reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 270 days after the Closing Time, Issue Date and (iii) use its reasonable best efforts to have such Registration Statement remain effective until promptly offer the closing Exchange Notes in exchange for surrender of the Notes upon the effectiveness of the Exchange Offer Registration Statement, and (iv) commence consummate the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 within 315 days after the Closing TimeIssue Date. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, unless the Exchange Offer would not be permitted by applicable law or applicable interpretation of the staff of the SEC, it being understood that the objective of such Exchange Offer is to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Securities, if issued) for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange SecuritiesNotes) (any Holder meeting all such requirements, hereinafter an “Eligible Holder”), with and to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail furnish to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documentsdocuments (together, the “Notice”);
(ii) use all commercially reasonable efforts to keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice Notice thereof is mailed furnished to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities withdraw, at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, any Notes tendered for exchange by sending to the institution specified in the notice Notice, a telegram, telex, facsimile transmission or letter letter, received before aforesaid time, setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(v) notify each Holder by means of the Notice that any Security Note not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers Dealer-Managers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company shall:
(i) accept for exchange all Securities Notes or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Notes or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to the Depositary (or if, the Exchange Notes are in certificated form, each Holder), a new Exchange Security or Private Exchange Security, as the case may be, Notes equal in principal amount to the principal amount of the Securities Notes surrendered by such Holder and accepted for exchangeHolder. Interest on each Exchange Note issued pursuant to the Exchange Offer will accrue from the last date on which interest was paid on the Note surrendered in exchange therefor or, if no interest has been paid on such Note, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its all commercially reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act. Except as set forth herein, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECSEC and that each Holder tendering Notes for exchange shall be an Eligible Holder. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, without limitation, representations that such Holder (i) it is not an affiliate of the Issuer within Company, (ii) the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee Each Holder hereby acknowledges and the Initial Purchasers, of the names agrees that any Participating Broker-Dealer and addresses of the Holders to whom any such Holder using the Exchange Offer is madeto participate in a distribution of the Exchange Notes: (1) could not under SEC policy as in effect on the date of this Agreement rely on the position of the SEC enunciated in ▇▇▇▇▇ & ▇▇▇▇ LLP (available February 7, 1997), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC’s letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters (including, without limitation, any no-action letter obtained based on the Initial Purchasers shall have representations in clause (i) above), and (2) must comply with the right to contact registration and prospectus delivery requirements of the Securities Act in connection with the secondary resale transaction and that such Holders a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Item 507 and otherwise facilitate 508, as applicable, of Regulation S-K, the tender SEC standard instructions for filing forms under the Securities Act, if the resales are of Registrable Securities Exchange Notes obtained by such Holder in exchange for Notes acquired by such Holder directly from the Exchange OfferCompany. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issuedpursuant to Section 2(b)(iii)) pursuant to Section 2(b) hereofof this Agreement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Oncor Electric Delivery Co LLC), Registration Rights Agreement (Oncor Electric Delivery Co LLC)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (ia) The Issuers agree to file with the SEC within 90 days after SEC, on or before the Closing Time Filing Date, an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange (the "Exchange Offer") any and all of the Registrable Securities for a like aggregate principal amount of senior subordinated debt securities of the Company which are identical to the Notes and are guaranteed, jointly and severally, by each of the Guarantors with terms identical to the Guarantees (the "Exchange Securities") (and which are entitled to the benefits of a trust indenture that is substantially identical to the Indenture (other than Private such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualification of such trust indenture under the TIA) and which has been qualified under the TIA), except that the Exchange Securities, if issuedSecurities shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain no restrictive legend thereon. The Exchange Offer will be registered under the Securities Act on the appropriate form (the "Exchange Offer Registration Statement") for a like principal amount and will comply with all applicable tender offer rules and regulations under the Exchange Act. Each of Exchange Securities, (ii) the Issuers agrees to use its reasonable best efforts (i) to cause such the Exchange Offer Registration Statement to be declared become effective under and to commence the Securities Act by the SEC Exchange Offer on or prior to the 180th day after the Closing TimeEffectiveness Date, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) to 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 35 days (or longer if required by applicable law) (the last day of such period referred to herein as period, the “Exchange Period”);
"Expiration Date") and (iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant Offer on or prior to the Private Exchange; and
(iii) deliver, or cause to be delivered, to fifth day following the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECExpiration Date. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities participates in the Exchange Offer will be required deemed to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, represent that any Exchange Securities to be received by it will be acquired in the ordinary course of business and its business, that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a)2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Exchange Securities to which Section 2(c)(v) is applicable and Exchange Securities held by Participating Broker-Dealers, and the Issuer Issuers shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issuedSecurities and other than Exchange Securities as to which Section 2(c)(v) hereof applies) pursuant to Section 2(b3 of this Agreement. No securities other than the Exchange Securities shall be included in the Exchange Offer Registration Statement.
(b) hereofThe Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled "Plan of Distribution," reasonably acceptable to the Initial Purchaser, which shall contain a summary statement of the positions taken or policies made by the Staff of the SEC (and publicly disseminated) with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Securities received by such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"). Such "Plan of Distribution" section shall also allow the use of the prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Securities. Each of the Issuers shall use its best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for at least 180 days following the first bona fide offering of securities under such Registration Statement (or such shorter time as such Persons must comply with such requirements in order to resell the Exchange Securities) (the "Applicable Period"). If, prior to consummation of the Exchange Offer, the Initial Purchaser holds any Notes acquired by it and having the status of an unsold allotment in the initial distribution, the Issuers upon the request of the Initial Purchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to the Initial Purchaser, in exchange (the "Private Exchange") for the Notes held by the Initial Purchaser, a like principal amount of debt securities of the Company that are identical to the Exchange Securities and are guaranteed, jointly and severally, by each of the Guarantors with terms identical to the Guarantees (the "Private Exchange Securities") (and which are issued pursuant to the same indenture as the Exchange Securities) (except for the placement of a restrictive legend on such Private Exchange Securities). The Private Exchange Securities shall bear the same CUSIP number as the Exchange Securities. Interest on the Exchange Securities and Private Exchange Securities 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. Any indenture under which the Exchange Securities or the Private Exchange Securities will be issued shall provide that the holders of any of the Exchange Securities and the Private Exchange Securities 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 Securities and the Private Exchange Securities will have the right to vote or consent as a separate class on any matter.
Appears in 2 contracts
Sources: Purchase Agreement (Polymer Group Inc), Registration Rights Agreement (Polymer Group Inc)
Exchange Offer. To the extent Unless not prohibited permitted by any applicable law or applicable SEC policy(after the Company has complied with the ultimate paragraph of this Section 1), the Issuer shallCompany shall prepare and, for on or prior to 90 days (such 90th day being a "Filing Deadline") after the benefit of date on which the Holders and at Initial Purchasers purchase the Issuer’s cost Offered Securities pursuant to the Purchase Agreement (i) the "Closing Date"), file with the SEC within 90 days after Securities and Exchange Commission (the Closing Time an "Commission") a registration statement (the "Exchange Offer Registration Statement Statement") on an appropriate form under the Securities Act covering of 1933, as amended (the "Securities Act"), with respect to a proposed offer by (the Issuer "Exchange Offer") to the Holders to exchange all of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Registrable Securities (other than Private Commission from participating in the Exchange Offer, to issue and deliver to such Holders, in exchange for the Offered Securities, if issued) for a like aggregate principal amount of debt securities of the Issuer and Guarantees of the Guarantors issued under the Indenture, identical in all material respects to the Offered Securities and registered under the Securities Act (the "Exchange Securities, Notes"). The Company shall (iii) use its reasonable best efforts to cause have such Exchange Offer Registration Statement to be declared effective by the Commission under the Securities Act by the SEC on or prior to the 180th day 180 days after the Closing TimeDate and (ii) unless the Exchange Offer would not be permitted by applicable law or Commission policy, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing Company will, following the declaration of the effectiveness of the Exchange Offer and Registration Statement (iva) commence the Exchange Offer and (b) use its reasonable best efforts to issue on or prior to 30 business days after the date on which the Exchange Securities Offer Registration Statement was declared effective by the Commission, Exchange Notes, in exchange for all Registrable Offered Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after (such period being called the Closing Time"Exchange Offer Registration Period"). Upon Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and of Transfer Restricted Securities electing to exchange Registrable the Offered Securities (other than Private Exchange Securities, if issued) for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own accountAct, acquires the Exchange Securities Notes in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning distribution of the Securities Act) Exchange Notes and is not prohibited by any law or policy of the Commission from participating in the Exchange SecuritiesOffer), with to trade such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Offered Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Notes (an "Exchanging Dealer"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Notes received by such Exchanging Dealer pursuant to the Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Offered Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. Subject to the next paragraph, for so long as any of the Securities (as defined below) are outstanding (but in no event later than 180 days after the Exchange Offer Registration Statement is declared effective). and if, in the reasonable judgment of the Initial Purchasers or their counsel, the Initial Purchasers or any of their affiliates (as defined in the rules and regulations under the Securities Act) are required to deliver a prospectus (any such prospectus, a "Market Making Prospectus") in connection with sales of the Securities, to (i) provide the Initial Purchasers and their affiliates, without charge, as many copies of the Market Making Prospectus as they may reasonably request, (ii) periodically amend the Offering Document (as defined in the Purchase Agreement) and the Exchange Offer Registration Statement so that the information contained therein complies with the requirements of Section 10(a) of the Securities Act, (iii) amend the Exchange Offer Registration Statement or amend or supplement the Market Making Prospectus when necessary to reflect any material changes in the information provided therein and promptly file such amendment or supplement with the Commission, (iv) provide the Initial Purchasers and their affiliates with copies of each amendment or supplement so filed and such other documents, including opinions of counsel and "comfort" letters, as they may reasonably request and (v) indemnify the Initial Purchasers and their affiliates with respect to the Market Making Prospectus and, if applicable, contribute to any amount paid or payable by the Purchasers and their affiliates in a manner substantially identical to that specified in [Section 7] of the Purchase Agreement (with appropriate modifications). The Company consents to the use, subject to the provisions of the Securities Act and the state securities or “blue sky” lawsBlue Sky laws of the jurisdictions in which the Offered Securities are offered by the Purchasers, of each Market Making Prospectus. The Company shall use its best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Notes; provided, however, that (i) in the case where such prospectus and any -------- ------- amendment or supplement thereto must be delivered by an Exchanging Dealer or the Initial Purchasers, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Notes held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Notes for a period of not less than 180 days after the consummation of the Exchange Offer. If, upon consummation of the Exchange Offer, the Initial Purchasers hold Offered Securities acquired by them as part of their initial distribution, the Company, simultaneously with the delivery of the Exchange Notes pursuant to the Exchange Offer, shall issue and deliver to the Initial Purchasers upon the written request of the Initial Purchasers, in exchange (the "Private Exchange") for the Offered Securities held by the Initial Purchasers, a like principal amount of debt securities of the Issuer and Guarantees of the Guarantors issued under the Indenture and identical in all material respects to the Offered Securities (the "Private Exchange Notes"). The Offered Securities, the Exchange Notes and the Private Exchange Notes are herein collectively called the "Securities". In connection with the Exchange Offer, the Issuer Company shall:
(ia) mail to each Holder a copy of the Prospectus prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 25 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”)Holders;
(iiic) utilize the services of the Trustee a depositary for the Exchange OfferOffer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(ivd) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of business day on which the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will Offer shall remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein)open; and
(vie) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securitieslaws. As soon as practicable after the close of the Exchange Offer and/or or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (Icon Health & Fitness Inc), Registration Rights Agreement (Icon Health & Fitness Inc)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyExcept as set forth in Section 2(b) below, the Issuer Corporation and the Trust shall, for the benefit of the Holders and at the Issuer’s cost Holders, use their reasonable best efforts to (i) file cause to be filed with the SEC within 90 150 days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer relating to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeIssue Date, and (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (or longer if required by applicable law) after the closing date notice of the Exchange Offer and (iv) commence is mailed to the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeHolders. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Corporation and the Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Debentures or a like liquidation amount of Exchange Capital Securities, if issued) for together with the Exchange Securities Guarantee, as applicable (assuming that such Holder (i) is not an affiliate Affiliate of the Issuer within Trust or the meaning of Rule 405 under the Securities Act and Corporation, (ii) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Corporation for its own account, (iii) acquires the Exchange Securities in the ordinary course of such Holder’s 's business and (iv) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” lawssky laws (other than requiring minimum transfers in blocks having an aggregate principal or liquidation amount, as the case may be, of $100,000). In connection with the Exchange Offer, the Issuer Corporation and the Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interestinterest or accumulate distributions, as the case may be, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior If the Initial Purchaser determines upon advice of its outside counsel that it is not eligible to consummation of participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Securities constituting any Securities acquired by it and such Securities have the status portion of an unsold allotment in the initial distribution, as soon as practicable upon receipt by the Issuer shall, upon Corporation and the Trust of a written request of from such Initial Purchaser, simultaneously with the delivery of Corporation and the Exchange Securities in the Exchange OfferTrust, as applicable, shall issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like liquidation amount of Capital Securities of the Trust or, in the event the Trust is liquidated and Subordinated Debentures are distributed, a like principal amount of debt securities the Subordinated Debentures of the Issuer Corporation, together with the Exchange Guarantee, in each case that are identical (except that such securities shall may bear appropriate a customary legend with respect to restrictions on transfer restrictionspursuant to the Securities Act) to the Exchange Securities (the “"Private Exchange Securities”") and which are issued pursuant to the Indenture, the Declaration or the Guarantee (which provides that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture or the Declaration, as applicable (other than requiring minimum transfers in blocks having an aggregate principal or liquidation amount, as the case may be, of $100,000). The Private , and that the Exchange Securities, if anythe Private Exchange Securities and the Securities will vote and consent together on all matters as one class and that neither the Exchange Securities, shall be issued under the IndenturePrivate Exchange Securities nor the Securities will have the right to vote or consent as a separate class on any matter). The Private Exchange Securities shall be of the same series as, as the Exchange Securities and the Issuer shall use its reasonable best efforts Corporation and the Trust will seek to have cause the CUSIP Service Bureau to issue the same CUSIP Numbers for the Private Exchange Securities bear as for the same CUSIP number as Exchange Securities issued pursuant to the applicable Exchange SecuritiesOffer. As soon as practicable after the close of the Exchange Offer and/or and, if applicable, the Private Exchange, the Corporation and the Trust, as the case may berequires, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the applicable Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and Corporation; and
(iii) issue, and cause the applicable Trustee under the Indenture Indenture, the Declaration or the Guarantee, as applicable, to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may beapplicable, equal in principal amount to the principal amount of the Subordinated Debentures or equal in liquidation amount to the liquidation amount of the Capital Securities (together with the guarantee thereof) as are surrendered by such Holder Holder. Distributions on each Exchange Capital Security and accepted for exchangeinterest on each Exchange Debenture and Private Exchange Security issued pursuant to the Exchange Offer and in the Private Exchange will accrue from the last date on which a Distribution or interest was paid on the Capital Security or the Subordinated Debenture surrendered in exchange therefor or, if no Distribution or interest has been paid on such Capital Security or Subordinated Debenture, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Corporation and the Trust shall use its their reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, in the case of any Holder of Capital Securities, representations that such Holder (i) it is not an affiliate Affiliate of the Issuer within Trust or the meaning of Rule 405 under Corporation, (ii) the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Capital Securities. The Issuer Corporation and the Trust shall inform the Initial PurchasersPurchaser, after consultation with the Trustee and the Initial Purchasersapplicable Trustees, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Purchaser shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer Corporation and the Trust shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) held by any Holder pursuant to Section 2(b) hereofof this Agreement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Progress Capital Trust I), Registration Rights Agreement (First Keystone Capital Trust I)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and Holders, at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds any Securities acquired by it and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such the Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such the Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such the Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the Indenture or (ii) an indenture identical to the Indenture in all material respects and which, in either case, has been qualified under the TIA and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Securities, the Private Exchange Securities and the Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, the Private Exchange Securities or the Securities will have the right to vote or consent as a separate class on any matter. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as as, the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial PurchasersPurchaser, after consultation with the Trustee and the Initial PurchasersPurchaser, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Purchaser shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (Feg Holdings Inc), Registration Rights Agreement (News Corp)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and Holders, at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds any Securities acquired by it and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such the Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such the Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such the Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as as, the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial PurchasersPurchaser, after consultation with the Trustee and the Initial PurchasersPurchaser, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Purchaser shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. In lieu of filing the Shelf Registration Statement described in Section 2.2, the Issuers may effect an Exchange Offer pursuant to this Section 2.1. To effect an Exchange Offer, the Issuers shall, to the extent not prohibited by any applicable law or applicable SEC policy, interpretation of the Issuer shallstaff of the SEC, for the benefit of the Holders and Holders, at the Issuer’s cost Issuers’ cost, (iA) prepare and use their reasonable best efforts to file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under with respect to a proposed Exchange Offer and the Securities Act covering the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its their reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after the Closing Timeas soon as practical thereafter, (iiiC) use its reasonable their best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence use their best efforts to cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other be consummated not later than 45 days following the Private Exchange Securities, if issued) properly tendered prior thereto in effectiveness of the Exchange Offer not later than 225 days after the Closing TimeRegistration Statement. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Issuers shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the any Issuer within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Issuers for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Issuers shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyExcept as set forth in Section 2(b) below, the Issuer Company and the Trust shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, use commercially reasonable efforts to (i) file cause to be filed with the SEC within 90 150 days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer relating to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeIssue Date, and (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (or longer if required by applicable law) after the closing date notice of the Exchange Offer and (iv) commence is mailed to the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days Holders. Promptly after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Debentures or a like liquidation amount of Exchange Capital Securities, if issued) for together with the Exchange Capital Securities Guarantee, as applicable (assuming provided that such Holder (w) is not an affiliate Affiliate of the Issuer within Trust or the meaning of Rule 405 under the Securities Act and Company, (x) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer Trust or an affiliate of the Issuer for its own accountCompany, (y) acquires the Exchange Securities in the ordinary course of such Holder’s 's business and (z) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” lawssky laws (other than requiring minimum transfers in blocks having an aggregate principal or liquidation amount, as the case may be, of $100,000). In connection with the Exchange Offer, the Issuer Company and the Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange OfferOffer with respect to Capital Securities represented by a global certificate;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice to Holders, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interestinterest or accumulate distributions, as the case may be, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior If either Initial Purchaser determines upon advice of its outside counsel that it is not eligible to consummation of participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Securities constituting any Securities acquired by it and such Securities have the status portion of an unsold allotment in the initial distributionplacement, as soon as practicable upon receipt by the Issuer shall, upon Company and the Trust of a written request of from such Initial Purchaser, simultaneously with the delivery of Company and the Exchange Securities in the Exchange OfferTrust, as applicable, shall issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial PurchaserPurchaser a like liquidation amount of Exchange Capital Securities of the Trust or, in the event the Trust is liquidated and Subordinated Debentures are distributed, a like principal amount of debt securities the Exchange Debentures of the Issuer Company, together with the Exchange Capital Securities Guarantee, in each case that are identical (except that such securities shall may bear appropriate a customary legend with respect to restrictions on transfer restrictionspursuant to the Securities Act) to the Exchange Securities (the “"Private Exchange Securities”") and which are issued pursuant to the Indenture or the Declaration (which provides that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture or the Declaration, as applicable (other than requiring minimum transfers in blocks having an aggregate principal or liquidation amount, as the case may be, of $100,000). The Private , and that the Exchange Securities, if anythe Private Exchange Securities and the Securities will vote and consent together on all matters as one class and that none of the Exchange Securities, shall be issued under the IndenturePrivate Exchange Securities or the Securities will have the right to vote or consent as a separate class on any matter). The Private Exchange Securities shall be of the same series asas the Exchange Securities, and the Issuer shall use its reasonable best efforts Company and the Trust will seek to have cause the CUSIP Service Bureau to issue the same CUSIP numbers for the Private Exchange Securities bear as for the same CUSIP number as Exchange Securities issued pursuant to the applicable Exchange SecuritiesOffer. As soon as practicable after the close of the Exchange Offer and/or and, if applicable, the Private Exchange, the Company and the Trust, as the case may berequires, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the applicable Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, Company and the Trust; and
(iii) issue, and cause the applicable Trustee under the Indenture or the Declaration, as applicable, to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may beapplicable, equal in principal amount to the principal amount of the Subordinated Debentures or equal in liquidation amount to the liquidation amount of the Capital Securities as are surrendered by such Holder Holder, and accepted for exchangewill execute, and cause the applicable Trustee to execute, the Exchange Capital Securities Guarantee. Distributions on each Exchange Capital Security and interest or distributions on each Exchange Debenture and Private Exchange Security issued pursuant to the Exchange Offer and in the Private Exchange will accumulate or accrue from the last date on which a distribution or interest was paid on the Capital Security or the Subordinated Debenture surrendered in exchange therefor or, if no distribution or interest has been paid on such Capital Security or Subordinated Debenture, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company and the Trust shall use its commercially reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, conditions other than the conditions referred to in Section 2(b)(i) and (ii) below and those conditions that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECare customary in similar exchange offers. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, in the case of any Holder of Capital Securities, representations that such Holder (i) it is not an affiliate Affiliate of the Issuer within Trust or the meaning of Rule 405 under the Securities ActCompany, or if (ii) it is such an affiliatenot a broker-dealer tendering Registrable Securities acquired directly from the Trust or Company, it will comply with (iii) the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be were acquired in the ordinary course of its business and that (iv) at the time of the commencement of the Exchange Offer Offer, it has no arrangement arrangements or understandings with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Capital Securities. The Issuer Company and the Trust shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasersapplicable Trustees, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise in order to facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandisMUTATIS MUTANDIS, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer Company and the Trust shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) held by any Holder pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Reliance Capital Trust I)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyExcept as set forth in Section 2(b) below, the Issuer Company and the Trust shall, for the benefit of the Holders and at the Issuer’s cost Holders, use their reasonable best efforts to (i) file cause to be filed with the SEC within 90 120 days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer relating to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 150 days after the Closing TimeIssue Date, and (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (or longer if required by applicable law) after the closing date notice of the Exchange Offer and (iv) commence is mailed to the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeHolders. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Debentures or a like liquidation amount of Exchange Capital Securities, if issued) for together with the Exchange Securities Guarantee, as applicable (assuming that such Holder (i) is not an affiliate Affiliate of the Issuer within Trust or the meaning of Rule 405 under the Securities Act and Company, (ii) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, (iii) acquires the Exchange Securities in the ordinary course of such Holder’s 's business and (iv) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” lawssky laws (other than requiring minimum transfers in blocks having an aggregate principal or liquidation amount, as the case may be, of $100,000). In connection with the Exchange Offer, the Issuer Company and the Trust shall:
: (i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
; (ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “'Exchange Period”');
; (iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Sources: Capital Securities Registration Rights Agreement (Ucbh Trust Co)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyExcept as set forth in Section 2(b) below, the Issuer Operating Partnership and the Guarantors shall, for the benefit of the Holders and Holders, at the Issuer’s cost Operating Partnership's and the Guarantors' cost, (i) prepare and file with the SEC within as soon as practicable after the Closing Date, but in no event later than 90 calendar days after the Closing Time Date, an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer relating to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day as soon as practicable after the Closing TimeDate, but in no event later than 180 calendar days after the Closing Date, (iii) provided such Exchange Offer Registration Statement has been declared effective under the Securities Act by the SEC, use its commercially reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing completion of the Exchange Offer Offer, and (iv) provided such Exchange Offer Registration Statement has been declared effective under the Securities Act by the SEC, commence the Exchange Offer and use its reasonable best efforts keep the Exchange Offer open for not less than 20 Business Days, or longer if required by applicable law, after the date on which such Registration Statement was declared effective by the SEC (such period referred to herein as the "Exchange Period") and at the termination thereof issue Exchange Securities Notes in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly Notes tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer Operating Partnership and the Guarantors shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep use the services of the Depositary for the Exchange Offer open for acceptance for with respect to Notes represented by a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”)global certificate;
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities Registrable Notes at any time prior to the close of business, New York City time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice to Holders, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Registrable Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s its election to have such Securities Registrable Notes exchanged;
(viv) notify each Holder that any Registrable Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, interest but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all material respects with all applicable laws and regulations relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Operating Partnership and the Guarantors shall:
(i) accept for exchange all Securities Registrable Notes or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and letter of transmittal;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Registrable Notes or portions thereof so accepted for exchange by the Issuer, and Operating Partnership; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, Notes equal in principal amount to the principal amount of the Securities Registrable Notes as are surrendered by such Holder and accepted Holder. Interest on each Exchange Note issued pursuant to the Exchange Offer will accrue from the last date on which interest was paid or duly provided for exchangeon the Note surrendered in exchange therefor or, if no interest has been paid on such Note, from the date of original issue of such Note. To the extent not prohibited by any law judicial order, judgment, law, regulation or applicable interpretation of the staff of the SEC, the Issuer Operating Partnership and the Guarantors shall use its commercially reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, conditions other than the conditions referred to in Section 2(b)(i) and (ii) below and those conditions that the Exchange Offer does not violate are customary in similar exchange offers, except as may be required by applicable law or any applicable interpretation of the staff of the SEClaw. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) Notes who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) Notes for Exchange Securities Notes in the Exchange Offer will be required required, as a condition to participating in the Exchange Offer, to make certain customary representations in connection therewith, including including, in the case of any Holder, representations that such Holder (i) it is not an affiliate Affiliate of the Issuer within Operating Partnership or the meaning of Rule 405 under the Securities ActGuarantors, or if (ii) it is such an affiliatenot a broker-dealer tendering Registrable Notes acquired directly from the Operating Partnership or the Guarantors, it will comply with (iii) the registration Notes being exchanged, and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received received, by it will be have been or are being acquired in the ordinary course of its business and that (iv) at the time of the commencement of the Exchange Offer Offer, it has no arrangement arrangements or understandings with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer Operating Partnership and the Guarantors shall inform the Initial Purchasers, after consultation with the Trustee and the Initial PurchasersTrustee, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise in order to facilitate the tender of Registrable Securities Notes in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities Notes held by Initial Purchasers and Participating Broker-Dealers, and the Issuer Operating Partnership and the Guarantors shall have no further obligation to register the Registrable Securities (Notes held by any other than Private Exchange Securities, if issued) Holder pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Sunoco Logistics Partners Lp)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (i) unless the Exchange Offer would not be permitted by applicable law or SEC policy, file with the SEC within 90 30 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities Transfer Restricted Notes (other than Private Exchange Securities, if issuedNotes (as defined below)) for a like principal amount of Exchange SecuritiesNotes, (ii) unless the Exchange Offer would not be permitted by applicable law or SEC policy, use its reasonable best efforts to cause have such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day not later than 120 days after the Closing TimeTime (the "TARGET EFFECTIVENESS DATE"), (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) unless the Exchange Offer would not be permitted by applicable law or SEC policy, commence the Exchange Offer and use its reasonable best efforts to issue issue, on or prior to the 150th day after the Closing Time (the "TARGET CONSUMMATION Date"), Exchange Securities Notes in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly Notes tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to participate in the Exchange Offer to exchange Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities Transfer Restricted Notes acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with Notes) and to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”"EXCHANGE PERIOD");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities Notes at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities Notes acquired by it them and such Securities have the status of an unsold allotment not having been sold in the initial distribution, the Issuer shall, Company upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities Notes in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”"PRIVATE EXCHANGE") for the Securities Notes held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities Notes (the “"PRIVATE EXCHANGE NOTES"). The Exchange Notes and the Private Exchange Securities”)Notes shall be issued under (i) the Indenture or (ii) an indenture identical to all material respects to the Indenture and that, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter. The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities Notes shall be of the same series as, as and the Issuer Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities Notes bear the same CUSIP number as the Exchange Notes. The Company shall not have any liability under this Agreement solely as a result of such Private Exchange Notes not bearing the same CUSIP number as the Exchange Notes. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency that might materially impair the ability of the Company to proceed with the Exchange SecuritiesOffer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company deems necessary for the consummation of the Exchange Offer or Private Exchange. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Securities Transfer Restricted Notes or portions thereof properly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal that is an exhibit thereto;
(ii) accept for exchange all Securities duly Notes properly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Transfer Restricted Notes or portions thereof so accepted for exchange by the IssuerCompany, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security Note or Private Exchange SecurityNote, as the case may be, equal in principal amount to the principal amount of the Securities Transfer Restricted Notes surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, above and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities Transfer Restricted Notes in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandisMUTATIS MUTANDIS, solely with respect to Registrable Securities Transfer Restricted Notes that are Private Exchange Securities, if issued, Notes and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register Registrable Securities Transfer Restricted Notes (other than Private Exchange Securities, if issuedNotes) pursuant to Section 2(b) hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Mandalay Resort Group)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and Holders, at the Issuer’s 's cost (i) file with the SEC within 90 120 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, provided that a registration statement submitted by the Issuer on a confidential basis to the SEC will be deemed to have been filed with the SEC for the purposes of this paragraph, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time, (iii) use its commercially reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its commercially reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “"Private Exchange Securities”"). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the Indenture or (ii) an indenture identical to the Indenture in all material respects and which, in either case, has been qualified under the TIA and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Securities, the Private Exchange Securities and the Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, the Private Exchange Securities or the Securities will have the right to vote or consent as a separate class on any matter. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as as, the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its commercially reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To The Company and the extent not prohibited by any applicable law or applicable SEC policy, the Issuer Guarantors shall, for the benefit of the Holders and Holders, at their cost, (A) prepare and, not later than 120 days following the Issuer’s cost (i) Closing Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities, if issued) for of a like principal amount of Exchange Securities, (iiB) use its their commercially reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 180 days of the Closing Time, Date and (iiiC) use its their commercially reasonable best efforts to have such Registration Statement remain effective until the closing of cause the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 210 days after following the Closing TimeDate. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Guarantors shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with and has made representations to the Company to that effect) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company and the Guarantors shall:
(ia) mail as promptly as practicable after the Exchange Offer Registration Statement has been declared effective under the 1933 Act to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Registrable Securities exchanged;
(ve) notify each Holder that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds any Initial Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company and the Guarantors upon the request of such the Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such the Initial Purchaser in exchange (the “Private Exchange”) for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company on a senior basis, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private For the avoidance of doubt, such Exchange Securities, if any, Securities shall be issued under likewise guaranteed by the IndentureGuarantors. The Exchange Securities and the Private Exchange Securities shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that the Initial Securities, the Exchange Securities and the Private Exchange Securities shall vote and consent together on all matters as one class and that none of the same series asExchange Securities, and the Issuer Private Exchange Securities or the Initial Securities will have the right to vote or consent as a separate class on any matter. The Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. Neither the Company nor any of the Guarantors shall have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company and the Guarantors shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Initial Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law last date on which interest was paid on the Registrable Securities surrendered in exchange therefor (or applicable interpretation if the Exchange Security or Private Exchange Security is authenticated between a record date and an interest payment date with respect to the Registrable Securities surrendered in exchange therefor, from such interest payment date) or, if no interest has been paid on such Registrable Securities, from the date of original issuance of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Initial Securities Act, the Exchange Act and other applicable laws surrendered in connection with the Exchange Offerexchange therefor. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act▇▇▇▇ ▇▇▇) of the Exchange SecuritiesSecurities and shall have made such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form S-4 or other appropriate form under the 1933 Act available, (iv) all governmental approvals which the Company reasonably deems necessary for the consummation of the Exchange Offer and the Private Exchange shall have been obtained and (v) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offer or the Private Exchange which, in the Company’s judgment, would reasonably be expected to impair the ability of the Company or any of the Guarantors to proceed with the Exchange Offer or the Private Exchange. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchaser of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Purchaser shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyExcept as set forth in Section 2(b) below, the Issuer Company and the Trust shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, use best efforts to (i) file cause to be filed with the SEC within 90 150 days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer relating to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeIssue Date, and (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (or longer if required by applicable law) after the closing date notice of the Exchange Offer and (iv) commence is mailed to the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days Holders. Promptly after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Debentures or a like liquidation amount of Exchange Capital Securities, if issued) for together with the Exchange Capital Securities Guarantee, as applicable (assuming provided that such Holder (w) is not an affiliate Affiliate of the Issuer within Trust or the meaning of Rule 405 under the Securities Act and Company, (x) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer Trust or an affiliate of the Issuer for its own accountCompany, (y) acquires the Exchange Securities in the ordinary course of such Holder’s 's business and (z) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” lawssky laws (other than requiring minimum transfers in blocks having an aggregate principal or liquidation amount, as the case may be, of $100,000 and multiples of $1,000 in excess thereof). In connection with the Exchange Offer, the Issuer Company and the Trust shall:
(i1) 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;
(ii2) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”"EXCHANGE PERIOD");
(iii3) utilize the services of the Trustee Depositary for the Exchange OfferOffer with respect to Capital Securities represented by a global certificate;
(iv4) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice to Holders, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v5) notify each Holder that any Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interestinterest or accumulate distributions, as the case may be, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vi6) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior If the Initial Purchaser determines upon advice of its outside counsel that it is not eligible to consummation of participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Securities constituting any Securities acquired by it and such Securities have the status portion of an unsold allotment in the initial distributionplacement, as soon as practicable upon receipt by the Issuer shall, upon Company and the Trust of a written request of such from the Initial Purchaser, simultaneously with the delivery of Company and the Exchange Securities in the Exchange OfferTrust, as applicable, shall issue and deliver to such the Initial Purchaser in exchange (the “Private Exchange”"PRIVATE EXCHANGE") for the Securities held by such the Initial PurchaserPurchaser a like liquidation amount of Exchange Capital Securities of the Trust or, in the event the Trust is liquidated and Subordinated Debentures are distributed, a like principal amount of debt securities the Exchange Debentures of the Issuer Company, together with the Exchange Capital Securities Guarantee, in each case that are identical (except that such securities shall may bear appropriate a customary legend with respect to restrictions on transfer restrictionspursuant to the Securities Act) to the Exchange Securities (the “Private "PRIVATE EXCHANGE SECURITIES") and which are issued pursuant to the Indenture or the Declaration (which provides that the Exchange Securities”Securities will not be subject to the transfer restrictions set forth in the Indenture or the Declaration, as applicable (other than requiring minimum transfers in blocks having an aggregate principal or liquidation amount, as the case may be, of $100,000 and multiples of $1,000 in excess thereof). The Private , and that the Exchange Securities, if anythe Private Exchange Securities and the Securities will vote and consent together on all matters as one class and that none of the Exchange Securities, shall be issued under the IndenturePrivate Exchange Securities or the Securities will have the right to vote or consent as a separate class on any matter). The Private Exchange Securities shall be of the same series asas the Exchange Securities, and the Issuer shall use its reasonable best efforts Company and the Trust will seek to have cause the CUSIP Service Bureau to issue the same CUSIP numbers for the Private Exchange Securities bear as for the same CUSIP number as Exchange Securities issued pursuant to the applicable Exchange SecuritiesOffer. As soon as practicable after the close of the Exchange Offer and/or and, if applicable, the Private Exchange, the Company and the Trust, as the case may berequires, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the applicable Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, Company and the Trust; and
(iii) issue, and cause the applicable Trustee under the Indenture or the Declaration, as applicable, to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may beapplicable, equal in principal amount to the principal amount of the Subordinated Debentures or equal in liquidation amount to the liquidation amount of the Capital Securities as are surrendered by such Holder Holder, and accepted for exchangewill execute, and cause the applicable Trustee to execute, the Exchange Capital Securities Guarantee. Distributions on each Exchange Capital Security and interest or distributions on each Exchange Debenture and Private Exchange Security issued pursuant to the Exchange Offer and in the Private Exchange will accumulate or accrue from the last date on which a distribution or interest was paid on the Capital Security or the Subordinated Debenture surrendered in exchange therefor or, if no distribution or interest has been paid on such Capital Security or Subordinated Debenture, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company and the Trust shall use its reasonable their best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, conditions other than the conditions referred to in Section 2(b)(i) and (ii) below and those conditions that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECare customary in similar exchange offers. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, in the case of any Holder of Capital Securities, representations that such Holder (i) it is not an affiliate Affiliate of the Issuer within Trust or the meaning of Rule 405 under the Securities ActCompany, or if (ii) it is such an affiliatenot a broker-dealer tendering Registrable Securities acquired directly from the Trust or Company, it will comply with (iii) the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be were acquired in the ordinary course of its business and that (iv) at the time of the commencement of the Exchange Offer Offer, it has no arrangement arrangements or understandings with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Capital Securities. The Issuer Company and the Trust shall inform the Initial PurchasersPurchaser, after consultation with the Trustee and the Initial Purchasersapplicable Trustees, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Purchaser shall have the right to contact such Holders and otherwise in order to facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Bfoh Capital Trust I)
Exchange Offer. To Except as set forth in Section 2(b) below, Peoples and the extent not prohibited by any applicable law or applicable SEC policy, the Issuer Trust shall, for the benefit of the Holders and at the Issuer’s cost Holders, (i) file cause to be filed with the SEC within 90 150 days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer relating to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 210 days after the Closing TimeIssue Date, and (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (or longer if required by applicable law) after the closing date notice of the Exchange Offer and (iv) commence is mailed to the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeHolders. Upon the effectiveness of the Exchange Offer Registration Statement, Peoples and the Issuer Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Debentures or a like liquidation amount of Exchange Capital Securities, if issued) for together with the Exchange Capital Securities Guarantee, as applicable (assuming that such Holder (i) is not an affiliate Affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and Trust or Peoples, (ii) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Peoples for its own account, (iii) acquires the Exchange Securities in the ordinary course of such Holder’s 's business and (iv) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” lawssky laws (other than requiring minimum transfers in blocks having an aggregate principal or liquidation amount, as the case may be, of $100,000). In connection with the Exchange Offer, Peoples and the Issuer Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interestinterest or accumulate distributions, as the case may be, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior If the Initial Purchaser determines upon advice of its counsel that it is not eligible to consummation of participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Securities constituting any Securities acquired by it and such Securities have the status portion of an unsold allotment in the initial distribution, as soon as practicable upon receipt by Peoples and the Issuer shall, upon the Trust of a written request of from such Initial Purchaser, simultaneously with Peoples and the delivery of the Exchange Securities in the Exchange OfferTrust, as applicable, shall issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like liquidation amount of Capital Securities of the Trust or, in the event the Trust is liquidated and Subordinated Debentures are distributed, a like principal amount of debt securities the Subordinated Debentures of Peoples, together with the Issuer Exchange Capital Securities Guarantee, in each case that are identical (except that such securities shall may bear appropriate a customary legend with respect to restrictions on transfer restrictionspursuant to the Securities Act) to the Exchange Securities (the “"Private Exchange Securities”") and which are issued pursuant to the Indenture, the Declaration or the Guarantee (which provides that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture or the Declaration, as applicable) (other than requiring minimum transfers in blocks having an aggregate principal or liquidation amount, as the case may be, of $100,000). The Private , and that the Exchange Securities, if anythe Private Exchange Securities and the Securities will vote and consent together on all matters as one class and that neither the Exchange Securities, shall be issued under the IndenturePrivate Exchange Securities nor the Securities will have the right to vote or consent as a separate class on any matter). The Private Exchange Securities shall be of the same series as, as the Exchange Securities and Peoples and the Issuer shall use its reasonable best efforts Trust will seek to have cause the CUSIP Service Bureau to issue the same CUSIP Numbers for the Private Exchange Securities bear as for the same CUSIP number as Exchange Securities issued pursuant to the applicable Exchange SecuritiesOffer. As soon as practicable after the close of the Exchange Offer and/or and, if applicable, the Private Exchange, Peoples and the Trust, as the case may berequires, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the applicable Trustee for cancellation all Securities or portions thereof so accepted for exchange by Peoples or the Issuer, and Trust; and
(iii) issue, and cause the applicable Trustee under the Indenture Indenture, the Declaration or the Guarantee, as applicable, to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may beapplicable, equal in principal amount to the principal amount of the Subordinated Debentures or equal in liquidation amount to the liquidation amount of the Capital Securities (together with the guarantee thereof) as are surrendered by such Holder Holder. Distributions on each Exchange Capital Security and accepted for exchangePrivate Exchange Security and interest on each Exchange Debenture issued pursuant to the Exchange Offer and in the Private Exchange will accrue from the last date on which a Distribution or interest was paid on the Capital Security or the Subordinated Debenture surrendered in exchange therefor or, if no Distribution or interest has been paid on such Capital Security or Subordinated Debenture, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, Peoples and the Issuer Trust shall use its their reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, in the case of any Holder of Capital Securities, representations that such Holder (i) it is not an affiliate Affiliate of the Issuer within Trust or Peoples, (ii) the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Capital Securities. The Issuer Peoples and the Trust shall inform the Initial PurchasersPurchaser, after consultation with the Trustee and the Initial Purchasersapplicable Trustees, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Purchaser shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and Peoples and the Issuer Trust shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) Securities held by any Holder pursuant to Section 2(b) hereofof this Agreement).
Appears in 1 contract
Sources: Registration Rights Agreement (Peoples Bancorp Inc)
Exchange Offer. To Unless the extent Exchange Offer would not prohibited be permitted by any applicable law or applicable SEC policyrules, regulations or policies, the Issuer and the Guarantors shall, for the benefit of the Holders and Holders, at the Issuer’s cost cost, use their commercially reasonable efforts to (iA) prepare and file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities, if issued) for of a like principal amount of Exchange Securities, Securities (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by at the SEC on or prior to the 180th day earliest possible time after the Closing Timefiling thereof, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until until, subject to Section 3(f)(C), the closing of the Exchange Offer and (ivD) commence cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 270 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offerdate hereof, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer shall:
(ia) mail as promptly as reasonably practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days business days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York 5:00 p.m. (Eastern time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice a telegram, telexnotice, facsimile transmission, other electronic transmission such as a PDF, or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer A Holder that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will shall be required (a) to make certain customary representations in connection therewith, including representations represent that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any (i) all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that (ii) at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesSecurities 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 Issuer hereby agrees and undertake to provide any such broker-dealer with such number of Prospectuses as such broker-dealer may reasonably request for such purpose). The Issuer Exchange Securities shall inform be issued under the Initial PurchasersIndenture which shall be qualified under the Trust Indenture Act of 1939, after consultation with as amended (the Trustee “TIA”), and shall provide that the Exchange Securities shall not be subject to the transfer restrictions or “Additional Interest” provisions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Securities and the Initial Purchasers, Securities shall vote and consent together on all matters as one class and that none of the names and addresses of Exchange Securities or the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall Securities will have the right to contact such Holders and otherwise facilitate vote or consent as a separate class on any matter. As soon as reasonably practicable after the tender close of Registrable Securities in the Exchange Offer. Upon consummation of , the Issuer shall:
(i) accept for exchange all Registrable Securities duly tendered and not validly withdrawn pursuant to the Exchange Offer in accordance with this Section 2(a)the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) deliver, or cause to be delivered, to the provisions Trustee for cancellation all Registrable Securities so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver Exchange Securities to each Holder of this Agreement 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 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 shall continue not be subject to applyany conditions, mutatis mutandisother than (i) that the Exchange Offer or the making of any exchange by a Holder, solely does not violate applicable law or any applicable interpretation of the staff of the SEC, (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer (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 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 Registrable Securities that are Private the Exchange SecuritiesOffer which, if issuedin the Issuer’s judgment, and Exchange Securities held by Participating Broker-Dealers, and would reasonably be expected to impair the ability of the Issuer shall have no further obligation to register Registrable Securities (proceed with the Exchange Offer and may also include other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofconditions customarily included in exchange offers of this type.
Appears in 1 contract
Sources: Registration Rights Agreement (Atlantic Power Corp)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail deliver to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Twenty-First Century Fox, Inc.)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (ia) The Issuers agree to use their best efforts to file with the SEC within 90 days as soon as practicable after the Closing Time Closing, but in no event later than the Filing Date, an offer to exchange (the "EXCHANGE OFFER") any and all of the Notes for a like aggregate principal amount at maturity of debt securities of the Obligors which are identical to the Notes (the "EXCHANGE NOTES") (and which are entitled to the benefits of the Indenture or a trust indenture which is substantially identical to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA), except that the Exchange Notes shall have been registered pursuant to an effective Registration Statement under the Securities Act. The Exchange Offer Registration Statement will be registered under the Securities Act on an appropriate form (the "EXCHANGE REGISTRATION STATEMENT") and will comply with all applicable tender offer rules and regulations under the Securities Act covering the offer by the Issuer Exchange Act. The Issuers agree to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable their best efforts to (x) cause such the Exchange Offer Registration Statement to be declared become effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the SEC 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 following the Closing TimeIssue Date. Each Holder who participates in the Exchange Offer will be required to represent that any Exchange Notes received by it will be acquired in the ordinary course of its business, (iii) use its reasonable best efforts to have such Registration Statement remain effective until that at the closing time of the consummation of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts such Holder will have no arrangement or understanding with any person to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto participate in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness distribution of the Exchange Offer Registration StatementNotes, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Obligors within the meaning of Rule 405 promulgated under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, that it will comply with the registration and prospectus delivery requirements of the Securities Act Act, to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a)2, the provisions of this Agreement shall continue to apply, mutatis mutandisMUTATIS MUTANDIS, solely with respect to Registrable Securities Notes that are Private Exchange Securities, if issued, Notes and Exchange Securities Notes held by Participating Broker-DealersDealers (as defined below), and the Issuer Issuers shall have no further obligation to register Registrable Securities Notes (other than Private Exchange Securities, if issuedNotes and Exchange Notes held by Participating Broker-Dealers) pursuant to Section 2(b3 of this Agreement.
(b) hereof.The Issuers shall include within the Prospectus contained in the Exchange Registration Statement a section entitled "Plan of Distribution," reasonably acceptable to the Initial Purchaser, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 promulgated 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, 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 the use of the Prospectus by all persons subject to the prospectus delivery requirements of the Securities Act, including all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes. The Issuers shall use their best efforts to keep the Exchange Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Notes, PROVIDED that such period shall not exceed 180 days (or such longer period if extended pursuant to the last paragraph of Section 5) after the date of the consummation of the Exchange Offer (the "APPLICABLE PERIOD"). If, 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, the Issuers upon the request of the Initial Purchaser shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Notes held by the Initial Purchaser, a like principal amount at maturity of debt securities of the Issuers that are identical in all material respects to the Exchange Notes (the "PRIVATE EXCHANGE NOTES") (and which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes. The Exchange Notes and any Private Exchange Notes will be exchanged at the Accreted Value of the Notes existing on the date the exchange is effected; and, if cash interest has begun to accrue on the Notes, interest on the Exchange Notes and any Private Exchange Notes will accrue 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 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. In connection with the Exchange Offer, the Issuers shall:
Appears in 1 contract
Sources: Registration Rights Agreement (Acme Intermediate Holdings LLC)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyExcept as set forth in Section 2(b) below, the Issuer Corporation and the Trust shall, for the benefit of the Holders and Holders, at the Issuer’s cost Corporation's cost, use commercially reasonable efforts to (i) file cause to be filed with the SEC within 90 140 days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer relating to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeIssue Date, and (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (or longer if required by applicable law) after the closing date notice of the Exchange Offer and (iv) commence is mailed to the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeHolders. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Corporation and the Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Debentures or a like liquidation amount of Exchange Capital Securities, if issued) for together with the Exchange Securities Guarantee, as applicable (assuming that such Holder (i) is not an affiliate Affiliate of the Issuer within Trust or the meaning of Rule 405 under the Securities Act and Corporation, (ii) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Corporation for its own account, (iii) acquires the Exchange Securities in the ordinary course of such Holder’s 's business and (iv) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” lawssky laws (other than requiring minimum transfers in blocks having an aggregate principal or liquidation amount, as the case may be, of $100,000). In connection with the Exchange Offer, the Issuer Corporation and the Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interestinterest or accumulate distributions, as the case may be, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior If the Initial Purchaser determines upon advice of its outside counsel that it is not eligible to consummation of participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Securities constituting any Securities acquired by it and such Securities have the status portion of an unsold allotment in the initial distribution, as soon as practicable upon receipt by the Issuer shall, upon Corporation and the Trust of a written request of from such Initial Purchaser, simultaneously with the delivery of Corporation and the Exchange Securities in the Exchange OfferTrust, as applicable, shall issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like liquidation amount of Capital Securities of the Trust or, in the event the Trust is liquidated and Subordinated Debentures are distributed, a like principal amount of debt securities the Subordinated Debentures of the Issuer Corporation, together with the Exchange Guarantee, in each case that are identical (except that such securities shall may bear appropriate a customary legend with respect to restrictions on transfer restrictionspursuant to the Securities Act) to the Exchange Securities (the “"Private Exchange Securities”") and which are issued pursuant to the Indenture, the Declaration or the Guarantee (which provides that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture or the Declaration, as applicable (other than requiring minimum transfers in blocks having an aggregate principal or liquidation amount, as the case may be, of $100,000). The Private , and that the Exchange Securities, if anythe Private Exchange Securities and the Securities will vote and consent together on all matters as one class and that neither the Exchange Securities, shall be issued under the IndenturePrivate Exchange Securities nor the Securities will have the right to vote or consent as a separate class on any matter). The Private Exchange Securities shall be of the same series as, as the Exchange Securities and the Issuer shall use its reasonable best efforts Corporation and the Trust will seek to have cause the CUSIP Service Bureau to issue the same CUSIP Numbers for the Private Exchange Securities bear as for the same CUSIP number as Exchange Securities issued pursuant to the applicable Exchange SecuritiesOffer. As soon as practicable after the close of the Exchange Offer and/or and, if applicable, the Private Exchange, the Corporation and the Trust, as the case may berequires, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the applicable Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and Corporation; and
(iii) issue, and cause the applicable Trustee under the Indenture Indenture, the Declaration or the Guarantee, as applicable, to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may beapplicable, equal in principal amount to the principal amount of the Subordinated Debentures or equal in liquidation amount to the liquidation amount of the Capital Securities (together with the guarantee thereof) as are surrendered by such Holder Holder. Distributions on each Exchange Capital Security and accepted for exchangeinterest on each Exchange Debenture and Private Exchange Security issued pursuant to the Exchange Offer and in the Private Exchange will accrue from the last date on which a Distribution or interest was paid on the Capital Security or the Subordinated Debenture surrendered in exchange therefor or, if no Distribution or interest has been paid on such Capital Security or Subordinated Debenture, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Corporation and the Trust shall use its commercially reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, in the case of any Holder of Capital Securities, representations that such Holder (i) it is not an affiliate Affiliate of the Issuer within Trust or the meaning of Rule 405 under Corporation, (ii) the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Capital Securities. The Issuer Corporation and the Trust shall inform the Initial PurchasersPurchaser, after consultation with the Trustee and the Initial Purchasersapplicable Trustees, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Purchaser shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer Corporation and the Trust shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) held by any Holder pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Webster Capital Trust Ii)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyExcept as set forth in Section 2(b) below, the Issuer Corporation and the Trust shall, for the benefit of the Holders and at the Issuer’s cost Holders, (i) file cause to be filed with the SEC within 90 150 days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer relating to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeIssue Date, and (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (or longer if required by applicable law) after the closing date notice of the Exchange Offer and (iv) commence is mailed to the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeHolders. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Corporation and the Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Debentures or a like liquidation amount of Exchange Capital Securities, if issued) for together with the Exchange Capital Securities Guarantee, as applicable (assuming that such Holder (i) is not an affiliate Affiliate of the Issuer within Trust or the meaning of Rule 405 under the Securities Act and Corporation, (ii) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Corporation for its own account, (iii) acquires the Exchange Securities in the ordinary course of such Holder’s 's business and (iv) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” lawssky laws (other than requiring minimum transfers in blocks having an aggregate principal or liquidation amount, as the case may be, of $100,000). In connection with the Exchange Offer, the Issuer Corporation and the Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interestinterest or accumulate distributions, as the case may be, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior If the Initial Purchaser determines upon advice of its outside counsel that it is not eligible to consummation of participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Securities constituting any Securities acquired by it and such Securities have the status portion of an unsold allotment in the initial distribution, as soon as practicable upon receipt by the Issuer shall, upon Corporation and the Trust of a written request of from such Initial Purchaser, simultaneously with the delivery of Corporation and the Exchange Securities in the Exchange OfferTrust, as applicable, shall issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like liquidation amount of Capital Securities of the Trust or, in the event the Trust is liquidated and Subordinated Debentures are distributed, a like principal amount of debt securities the Subordinated Debentures of the Issuer Corporation, together with the Exchange Capital Securities Guarantee, in each case that are identical (except that such securities shall may bear appropriate a customary legend with respect to restrictions on transfer restrictionspursuant to the Securities Act) to the Exchange Securities (the “"Private Exchange Securities”") and which are issued pursuant to the Indenture, the Declaration or the Guarantee (which provides that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture or the Declaration, as applicable) (other than requiring minimum transfers in blocks having an aggregate principal or liquidation amount, as the case may be, of $100,000). The Private , and that the Exchange Securities, if anythe Private Exchange Securities and the Securities will vote and consent together on all matters as one class and that neither the Exchange Securities, shall be issued under the IndenturePrivate Exchange Securities nor the Securities will have the right to vote or consent as a separate class on any matter). The Private Exchange Securities shall be of the same series as, as the Exchange Securities and the Issuer shall use its reasonable best efforts Corporation and the Trust will seek to have cause the CUSIP Service Bureau to issue the same CUSIP Numbers for the Private Exchange Securities bear as for the same CUSIP number as Exchange Securities issued pursuant to the applicable Exchange SecuritiesOffer. As soon as practicable after the close of the Exchange Offer and/or and, if applicable, the Private Exchange, the Corporation and the Trust, as the case may berequires, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the applicable Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and Corporation; and
(iii) issue, and cause the applicable Trustee under the Indenture Indenture, the Declaration or the Guarantee, as applicable, to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may beapplicable, equal in principal amount to the principal amount of the Subordinated Debentures or equal in liquidation amount to the liquidation amount of the Capital Securities (together with the guarantee thereof) as are surrendered by such Holder Holder. Distributions on each Exchange Capital Security and accepted for exchangePrivate Exchange Security and interest on each Exchange Debenture issued pursuant to the Exchange Offer and in the Private Exchange will accrue from the last date on which a Distribution or interest was paid on the Capital Security or the Subordinated Debenture surrendered in exchange therefor or, if no Distribution or interest has been paid on such Capital Security or Subordinated Debenture, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Corporation and the Trust shall use its their reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, in the case of any Holder of Capital Securities, representations that such Holder (i) it is not an affiliate Affiliate of the Issuer within Trust or the meaning of Rule 405 under Corporation, (ii) the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Capital Securities. The Issuer Corporation and the Trust shall inform the Initial PurchasersPurchaser, after consultation with the Trustee and the Initial Purchasersapplicable Trustees, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Purchaser shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer Corporation and the Trust shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) held by any Holder pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyExcept as set forth in Section 2(b) below, the Issuer Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, use its reasonable best efforts to (i) file with the SEC within 90 150 calendar days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer relating to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 210 calendar days after the Closing TimeIssue Date, (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (or longer if required by applicable law) after the closing date notice of the Exchange Offer is mailed to the Holders and (iv) commence cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 be consummated within 240 calendar days after the Closing TimeIssue Date. Upon Promptly after the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities for a like principal amount of Exchange Notes (other than Private Exchange Securities, if issued) for Exchange Securities (assuming provided that such Holder (i) is not an affiliate Affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and Company, (ii) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own accountCompany, (iii) acquires the Exchange Securities Notes in the ordinary course of such Holder’s 's business and (iv) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with Notes) to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange OfferOffer with respect to Notes represented by a global certificate;
(iv) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York City time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice to Holders, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Registrable Securities exchanged;
(v) notify each Holder that any Registrable Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, interest but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and letter of transmittal which is an exhibit thereto;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, Notes equal in principal amount to the principal amount of the Securities Notes as are surrendered by such Holder and accepted Holder. Interest on each Exchange Note issued pursuant to the Exchange Offer will accrue from the last date on which interest was paid or duly provided for exchangeon the Note surrendered in exchange therefor or, if no interest has been paid on such Note, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, conditions other than the conditions referred to in Section 2(b)(i) and (ii) below and those conditions that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECare customary in similar exchange offers. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, in the case of any Holder, representations that such Holder (i) it is not an affiliate Affiliate of the Issuer within the meaning of Rule 405 under the Securities ActCompany, or if (ii) it is such an affiliatenot a broker-dealer tendering Registrable Securities acquired directly from the Company, it will comply with (iii) the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received by it will be are being acquired in the ordinary course of its business and that (iv) at the time of the commencement of the Exchange Offer Offer, it has no arrangement arrangements or understandings with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial PurchasersTrustee, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise in order to facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) held by any Holder pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Exchange Offer. (i) To the extent not prohibited by any applicable law or applicable SEC policypolicy of the SEC, the Issuer Issuers shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (iA) prepare and, as soon as practicable but not later than 120 days after the Issue Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Issuers to the Holders and to the holders of the 2001 Notes to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) and 2001 Notes for a like principal amount of Exchange Securities, (iiB) use its reasonable their best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeIssue Date, (iiiC) use its reasonable their best efforts to have keep such Registration Statement remain effective until the closing of the Exchange Offer and (ivD) use their best efforts to commence the Exchange Offer and use its reasonable best efforts and, on or prior to 240 days after the Issue Date, issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Issuers shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (A) is not an affiliate of the Issuer Issuers within the meaning of Rule 405 under the Securities Act or, if such Holder is an affiliate, that it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (B) is not a broker-dealer tendering Registrable Transfer Restricted Securities acquired directly from the Issuer or an affiliate of the Issuer Issuers for its own account, acquires (C) acquired the Exchange Securities in the ordinary course of such Holder’s 's business and (D) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with ) and to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. .
(ii) In connection with the Exchange Offer, the Issuer Issuers shall:
(iA) after the effectiveness of the Exchange Offer Registration Statement, mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iiB) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”"EXCHANGE PERIOD");
(iiiC) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivD) permit Holders to withdraw tendered Securities at any time prior to the close of business, 5:00 p.m. (New York time, ) on the last Business Day of the Exchange Period, Period by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchanged;
(vE) notify each Holder that any Security Securities not tendered or withdrawn will remain outstanding and continue to accrue interest, interest but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viF) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. .
(iii) If, prior to consummation of the Exchange Offer, an Offer the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Issuers upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”"PRIVATE EXCHANGE") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are Company, guaranteed by the Guarantors, issued pursuant to, and entitled to the benefits of, the Indenture and identical (to the Exchange Securities, except that such securities shall bear appropriate transfer restrictionsrestrictions (the "PRIVATE EXCHANGE SECURITIES").
(iv) to the The Exchange Securities (and the “Private Exchange Securities”). The Private Exchange Securities, if any, Securities shall be issued under (A) the Indenture or (B) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Securities, the Private Exchange Securities and the Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, the Private Exchange Securities or the Securities shall have the right to vote or consent as a separate class on any matter. The Private Exchange Securities shall be of the same series as, and the Issuer Company shall use its reasonable best efforts seek to have cause the CUSIP Service Bureau to issue the same CUSIP numbers for the Private Exchange Securities bear as for the Exchange Securities issued pursuant to the Exchange Offer; provided that the Company shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not having the same CUSIP number as the applicable Exchange Securities. .
(v) The Exchange Offer and the Private Exchange shall not be subject to any conditions other than (A) in the reasonable opinion of counsel to the Company, the Exchange Offer, or Private Exchange, as the case may be, does not violate applicable law or any applicable policy of the SEC, (B) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which, in the judgment of the Issuers, would reasonably be expected to impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange nor shall any material adverse development have occurred in any such action or proceeding with respect to the Issuers, (C) all governmental approvals which the Issuers deem reasonably necessary for the consummation of the Exchange Offer or Private Exchange shall have been obtained and (D) the due tendering of Transfer Restricted Securities in accordance with the terms of the Exchange Offer.
(vi) As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Issuers shall:
(iA) accept for exchange all Securities or portions thereof properly tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to Offer or the Private Exchange; and
(iiiB) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the IssuerIssuers, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. .
(vii) To the extent not prohibited by any law or applicable interpretation of the staff policy of the SEC, the Issuer Issuers shall use its reasonable their best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that (A) such Holder is not an affiliate of any of the Issuer Issuers within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, that it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that (B) it is not a broker-dealer tendering Transfer Restricted Securities acquired directly from the Issuers for its own account, (C) any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer (D) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. Each Participating Broker-Dealer will be required to acknowledge that it will deliver the Prospectus included in the Exchange Offer Registration Statement in connection with the resale of Exchange Securities to the extent it is subject to the prospectus delivery requirements of the SEC. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. .
(viii) Upon consummation of the Exchange Offer in accordance with this Section 2(a), (A) the provisions of this Agreement shall continue to apply, mutatis mutandismodified as necessary, solely with respect to Registrable Transfer Restricted Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, Dealers and Transfer Restricted Securities entitled to a Shelf Registration pursuant to the Issuer first paragraph of Section 2(b) hereof and (B) the Company shall have no further obligation to register Registrable any Transfer Restricted Securities (other than Private Exchange Securities, if issued) the registration of Transfer Restricted Securities pursuant to Section 2(b) hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Norske Skog Canada LTD)
Exchange Offer. To The Company shall (A) prepare and, as soon as practicable but not later than 90 days following the extent not prohibited by any applicable law or applicable SEC policyClosing Date, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities, if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 150 days of the Closing TimeDate, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in cause the Exchange Offer to be consummated not later than 225 180 days after following the Closing TimeDate. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s 's business and (d) has no arrangements or understandings with any Person person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities registration requirements of the 1933 Act and without material restrictions under state the securities or “blue sky” lawslaws of a substantial proportion of the several states of the United States. In connection with the Exchange Offer, the Issuer Company shall:
(ia) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Standard Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of certain rights retained by the Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept deliver or cause to be delivered all Registrable Securities so accepted for exchange all Securities duly tendered pursuant to the Private ExchangeTrustee for cancellation; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all promptly to authenticate and deliver Exchange Securities or portions thereof to each Holder of Registrable Securities so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, in a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation day after 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 the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer shall not be subject to any conditions, other than (i) that the Exchange Offer Offer, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the 1933 ▇▇▇) ▇▇ the Exchange Securities Actand shall have made such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form S-4 or other appropriate form under the 1933 Act available, (iv) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offer, (v) that there shall not have been adopted or enacted any law, statute, rule or regulation prohibiting the Exchange Offer, (vi) that there shall not have been declared by United States federal or New York state authorities a banking moratorium, (vii) that trading on the New York Stock Exchange or generally in the United States over-the-counter market shall not have been suspended by order of the SEC or any other governmental authority and (viii) such other conditions as may be reasonably acceptable to Bear Stea▇▇▇, ▇▇ each of clauses (iv) through (viii), which, in the Company's judgment, would reasonably be expected to impair the ability of the Company to proceed with the Exchange SecuritiesOffer. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchaser of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Purchaser shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (National Oilwell Inc)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policypolicy of the SEC, the Issuer Issuers shall, for the benefit of the Holders and Holders, at the Issuer’s cost Issuers' cost, (i) file cause to be filed with the SEC within 90 60 days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Issuers to the Holders to exchange all of the Registrable Transfer Restricted Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable their best efforts to cause have such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeIssue Date, (iii) use its reasonable their best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) use their best efforts to commence the Exchange Offer and use its reasonable best efforts and, on or prior to 210 days after the Issue Date, issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Issuers shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Transfer Restricted Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Issuers within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Transfer Restricted Securities acquired directly from the Issuer or an affiliate of the Issuer Issuers for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with ) and to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Issuers shall:
(i) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”"EXCHANGE PERIOD");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York 5:00 p.m. (Eastern time, ) on the last Business Day of the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Offer the Initial Purchaser holds any Securities acquired by it and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Issuers upon the request of such the Initial PurchaserPurchaser shall, to the extent not prohibited by any applicable law or applicable policy of the SEC, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”"PRIVATE EXCHANGE") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company, guaranteed by the Guarantors, that are issued pursuant to, and entitled to the benefits of, the Indenture and are identical (to the Exchange Securities, except that such securities shall bear appropriate transfer restrictionsrestrictions (the "PRIVATE EXCHANGE SECURITIES"). The Exchange Securities and the Private Exchange Securities shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Securities (other than the “Private Exchange Securities”)) shall not be subject to the transfer restrictions set forth in the Indenture. The Private Indenture or such indenture shall provide that the Exchange Securities, if anythe Private Exchange Securities and the Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, shall be issued under the IndenturePrivate Exchange Securities or the Securities will have the right to vote or consent as a separate class on any matter. The Private Exchange Securities shall be of the same series as, and the Issuer Issuers shall use its reasonable their best efforts to have the Private Exchange Securities bear the same CUSIP number as, the Exchange Securities. The Issuers shall not have any liability hereunder solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the applicable Exchange Securities. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) in the reasonable opinion of counsel to the Issuers, the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable policy of the SEC, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange nor shall any material adverse development have occurred in any such action or proceeding with respect to the Issuers, (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange and (iv) the due tendering of Transfer Restricted Securities in accordance with the terms of the Exchange Offer. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Issuers shall:
(i) accept for exchange all Transfer Restricted Securities or portions thereof properly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal that is an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Transfer Restricted Securities or portions thereof so accepted for exchange by the IssuerIssuers, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Transfer Restricted Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff policy of the SEC, the Issuer Issuers shall use its reasonable their best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Transfer Restricted Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Transfer Restricted Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of any of the Issuer Issuers within the meaning of Rule 405 under the Securities Act, or if that it is such an affiliate, it will comply with not a broker-dealer tendering Transfer Restricted Securities acquired directly from the registration and prospectus delivery requirements of the Securities Act to the extent applicableCompany for its own account, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. Each Participating Broker-Dealer will be required to acknowledge that it will deliver the Prospectus included in the Exchange Offer Registration Statement in connection with the resale of Exchange Securities to the extent it is subject to the prospectus delivery requirements of the SEC. The Issuer Issuers shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchaser of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Purchaser shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Transfer Restricted Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandisMUTATIS MUTANDIS, solely with respect to Registrable Transfer Restricted Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, Dealers and the Issuer shall have no further obligation Transfer Restricted Securities entitled to register Registrable Securities (other than Private Exchange Securities, if issued) a Shelf Registration pursuant to the first paragraph of Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (ia) The Issuers agree to file with the SEC within 90 days after Commission, no later than the Closing Time an Exchange Offer Filing Date, a Registration Statement on with respect to an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange (the "Exchange Offer") any and all of the Registrable Securities Notes (other than Private Exchange SecuritiesNotes, if issuedany) for a like aggregate principal amount of debt securities of the Company which are identical in all material respects to the Notes (the "Exchange SecuritiesNotes") (and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (including, without limitation, the guarantee provisions thereof) (iiother 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), 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 reasonable best efforts to (x) cause such the Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to before the 180th day after the Closing Time, Effectiveness Date; (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iiy) keep the Exchange Offer open for acceptance for a period of not less than at least 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close date that notice of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant is first mailed to the Exchange Offer;
Holders; and (iiz) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete consummate the Exchange Offer as provided above, and shall comply with on or prior to the applicable requirements of 30th day following the Securities Actdate on which the Exchange Registration Statement is declared effective. If after such Exchange Registration Statement is initially declared effective by the Commission, the Exchange Act and other applicable laws in connection with Offer or the issuance of the Exchange Offer. The 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 Offer Registration Statement shall be deemed not be subject to any conditionshave become effective, other than that for purposes of this Agreement, during the period of interference, until the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECand issuance resume. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities participates in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, represent that any Exchange Securities to be Notes received by it will be acquired in the ordinary course of business and its business, that at the time of the commencement consummation of the Exchange Offer it has 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 opinion of counsel to the Issuers are necessary under then existing interpretations of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom Commission in order for the Exchange Offer is made, and the Initial Purchasers shall have the right Registration Statement to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offerbe declared effective. Upon consummation of the Exchange Offer in accordance with this Section 2(a)2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities Notes that are Private Exchange Securities, if issued, Notes and Exchange Securities Notes held by Participating Broker-Dealers, if any, and the Issuer Issuers shall have no further fur- ther obligation to register Registrable Securities Notes (other than Private Exchange Securities, if issuedNotes and other than in respect of any Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 2(b3 of this Agreement.
(b) hereof.The Issuers shall include within the Prospectus contained in the Exchange 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 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 Holders, represent the prevailing views of the staff of the Commission. Such "Plan of Distribution" section shall also allow, to the extent permitted by applicable policies and regulations of the Commission, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and shall include a statement describing the manner in which Participating Broker-Dealers may resell the Exchange Notes. Each of the Issuers shall use its reasonable best efforts to keep the Exchange Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all Persons, subject to the prospectus delivery requirements of the Securities Act for such period of time beginning when the Exchange Notes are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 180th day after the Exchange Offer has been completed, and such Persons are no longer required to comply with the prospectus delivery requirements in connection with offers and sales of the Exchange Notes (the "Applicable Period"). If, upon consummation of the Exchange Offer, any Holder holds any Notes acquired by it and having the status of an unsold allotment in the initial distribution and, as a result, such Holder does not receive Exchange Notes on the date of exchange that may be sold without restriction under the federal securities laws, the Issuers, upon the request of such Holder, shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to such Holder, in exchange (the "Private Exchange") for the Notes held by such Holder, a like principal amount of debt securities of the Company that are identical in all material respects to the Exchange Notes, except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the United States of America (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, the Issuers shall:
Appears in 1 contract
Sources: Registration Rights Agreement (Imperial Group Holding Corp.-1)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyExcept as set forth in Section 2(b) below, the Issuer -------------- Company and the Trust shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, use their best efforts to (i) file cause to be filed with the SEC within 90 150 days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer relating to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeIssue Date, and (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (or longer if required by applicable law) after the closing date notice of the Exchange Offer and (iv) commence is mailed to the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days Holders. Promptly after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Debentures or a like liquidation amount of Exchange Capital Securities, if issued) for together with the Exchange Capital Securities Guarantee, as applicable (assuming provided that such Holder (w) is not an affiliate Affiliate of the Issuer within Trust or the meaning of Rule 405 under the Securities Act and Company, (x) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer Trust or an affiliate of the Issuer for its own accountCompany, (y) acquires the Exchange Securities in the ordinary course of such Holder’s 's business and (z) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” lawssky laws (other than requiring minimum transfers in blocks having an aggregate principal or liquidation amount, as the case may be, of $100,000 and multiples of $1,000 in excess thereof). In connection with the Exchange Offer, the Issuer Company and the Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee Depositary for the Exchange OfferOffer with respect to Capital Securities represented by a global certificate;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice to Holders, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interestinterest or accumulate distributions, as the case may be, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior If the Initial Purchaser determines upon advice of its outside counsel that it is not eligible to consummation of participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Securities constituting any Securities acquired by it and such Securities have the status portion of an unsold allotment in the initial distributionplacement, as soon as practicable upon receipt by the Issuer shall, upon Company and the Trust of a written request of such from the Initial Purchaser, simultaneously with the delivery of Company and the Exchange Securities in the Exchange OfferTrust, as applicable, shall issue and deliver to such the Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such the Initial Purchaser---------------- Purchaser a like liquidation amount of Exchange Capital Securities of the Trust or, in the event the Trust is liquidated and Subordinated Debentures are distributed, a like principal amount of debt securities the Exchange Debentures of the Issuer Company, together with the Exchange Capital Securities Guarantee, in each case that are identical (except that such securities shall may bear appropriate a customary legend with respect to restrictions on transfer restrictionspursuant to the Securities Act) to the Exchange Securities (the “"Private Exchange Securities”") and which are issued pursuant to --------------------------- the Indenture or the Declaration (which provides that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture or the Declaration, as applicable (other than requiring minimum transfers in blocks having an aggregate principal or liquidation amount, as the case may be, of $100,000 and multiples of $1,000 in excess thereof). The Private , and that the Exchange Securities, if anythe Private Exchange Securities and the Securities will vote and consent together on all matters as one class and that none of the Exchange Securities, shall be issued under the IndenturePrivate Exchange Securities or the Securities will have the right to vote or consent as a separate class on any matter). The Private Exchange Securities shall be of the same series asas the Exchange Securities, and the Issuer shall use its reasonable best efforts Company and the Trust will seek to have cause the CUSIP Service Bureau to issue the same CUSIP numbers for the Private Exchange Securities bear as for the same CUSIP number as Exchange Securities issued pursuant to the applicable Exchange SecuritiesOffer. As soon as practicable after the close of the Exchange Offer and/or and, if applicable, the Private Exchange, the Company and the Trust, as the case may berequires, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the applicable Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, Company and the Trust; and
(iii) issue, and cause the applicable Trustee under the Indenture or the Declaration, as applicable, to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may beapplicable, equal in principal amount to the principal amount of the Subordinated Debentures or equal in liquidation amount to the liquidation amount of the Capital Securities as are surrendered by such Holder Holder, and accepted for exchangewill execute, and cause the applicable Trustee to execute, the Exchange Capital Securities Guarantee. Distributions on each Exchange Capital Security and interest or distributions on each Exchange Debenture and Private Exchange Security issued pursuant to the Exchange Offer and in the Private Exchange will accumulate or accrue from the last date on which a distribution or interest was paid on the Capital Security or the Subordinated Debenture surrendered in exchange therefor or, if no distribution or interest has been paid on such Capital Security or Subordinated Debenture, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company and the Trust shall use its reasonable their best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, conditions other than the conditions referred to in Section 2(b)(i) and (ii) below and those conditions that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECare customary in similar exchange offers. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, in the case of any Holder of Capital Securities, representations that such Holder (i) it is not an affiliate Affiliate of the Issuer within Trust or the meaning of Rule 405 under the Securities ActCompany, or if (ii) it is such an affiliatenot a broker-dealer tendering Registrable Securities acquired directly from the Trust or Company, it will comply with (iii) the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be were acquired in the ordinary course of its business and that (iv) at the time of the commencement of the Exchange Offer Offer, it has no arrangement arrangements or understandings with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Capital Securities. The Issuer Company and the Trust shall inform the Initial PurchasersPurchaser, after consultation with the Trustee and the Initial Purchasersapplicable Trustees, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Purchaser shall have the right to contact such Holders and otherwise in order to facilitate the tender of Registrable Securities in the Exchange Ex change Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis ------- mutandis, solely with respect to Registrable Securities that are Private -------- Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Broker- Dealers, and the Issuer Company and the Trust shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) held by any Holder pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Astoria Capital Trust I)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (ia) The Company agrees to file with the SEC within 90 days after Commission no later than the Closing Time Filing Date, an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange (the "Exchange Offer") any and all of the Registrable Securities Shares (other than Private Exchange SecuritiesShares, if issuedany) for a like principal amount aggregate liquidate preference of preferred equity securities of Acquisition and, at and after the Effective Time, TNP, which are identical in all material respects to the Shares (the "Exchange SecuritiesShares") (and which are entitled to the benefits of the Statement of Resolution), except that the Exchange Shares 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 (iithe "Exchange Registration Statement") and shall comply with all applicable tender offer rules and regulations under the Exchange Act. The Company agrees to use its reasonable best efforts to (x) cause such the Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to before the 180th day after the Closing Time, Effectiveness Date; (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iiy) 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 at least 30 days (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close date that notice of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
is first mailed to Holders; and (iz) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete consummate the Exchange Offer as provided above, and shall comply with on or prior to the applicable requirements of 30th day following the Securities Actdate on which the Exchange Registration Statement is declared effective. If after such Exchange Registration Statement is initially declared effective by the Commission, the Exchange Act and other applicable laws in connection with Offer or the issuance of the Exchange Offer. The Exchange Offer shall not be subject to Shares thereunder is interfered with by any conditionsstop order, injunction or other than that order or requirement of the Exchange Offer does not violate applicable law Commission or any applicable interpretation other governmental agency or court, such Exchange Registration Statement shall be deemed not to have become effective for purposes of the staff of the SECthis Agreement. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities participates in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, represent that any Exchange Securities to be Shares received by it will be acquired in the ordinary course of business and its business, that at the time of the commencement consummation of the Exchange Offer it has no such Holder does not and will not have any arrangement or understanding with any Person to participate in the distribution (of the Exchange Shares, that such Holder is not an affiliate of the Company within the meaning of Rule 405 of the Securities Act) , and any additional representations that in the written opinion of counsel to the Company are necessary under then-existing interpretations of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom Commission in order for the Exchange Offer is made, and the Initial Purchasers shall have the right Registration Statement to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offerbe declared effective. Upon consummation of the Exchange Offer in accordance with this Section 2(a)2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities Shares that are Private Exchange Securities, if issued, Shares and Exchange Securities Shares held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register Registrable Securities Shares (other than Private Exchange Securities, if issuedShares and other than in respect of any Exchange Shares as to which clause 2(c)(iv) hereof applies) pursuant to Section 2(b3 of this Agreement.
(b) hereof.The Company shall include within the Prospectus contained in the Exchange Registration Statement a section entitled "Plan of Distribution," reasonably acceptable to the Purchasers, which shall contain a summary statement of the positions taken or policies made by the Staff of the Commission with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Shares 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 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 Shares. The Company shall use its reasonable best efforts to keep the Exchange Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time beginning when the Exchange Shares are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 180th day after the Exchange Offer has been completed and such Persons are no longer required to comply with the prospectus delivery requirements in connection with offers and sales of the Exchange Shares (the "Applicable Period"). If, upon consummation of the Exchange Offer, any Purchaser holds any Shares acquired by it and having the status of an unsold allotment in the initial distribution, the Company upon the request of such Purchaser shall, simultaneously with the delivery of the Exchange Shares in the Exchange Offer, issue and deliver to such Purchaser, in exchange (the "Private Exchange") for the Shares held by such Purchaser, a like liquidation preference of preferred equity securities of the Company that are identical in all material respects to the Exchange Shares except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the U.S. (the "Private Exchange Shares") (and which are issued pursuant to the same indenture as the Exchange Shares). The Private Exchange Shares shall bear the same CUSIP number as the Exchange Shares to the extent possible. Dividends on the Exchange Shares and Private Exchange Shares will accumulate from the last dividend payment date on which dividends were paid on the Shares surrendered in exchange therefor or, if no dividends have been paid on the Shares, from the Issue Date. In connection with the Exchange Offer, the Company shall:
Appears in 1 contract
Sources: Share Registration Rights Agreement (Texas New Mexico Power Co)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policypolicy of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, use its best efforts to (i) file cause to be filed with the SEC within 90 60 days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause have such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 120 days after the Closing TimeIssue Date, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts and, on or prior to 30 Business Days after the date on which the Exchange Offer Registration Statement was declared effective by the SEC, issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with ) and to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date of notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Offer the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company upon the request of any such Initial PurchaserPurchaser shall, to the extent not prohibited by any applicable law or applicable policy of the SEC, use its best efforts to simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company, that are identical (to the Exchange Securities, except that (i) such securities shall bear appropriate transfer restrictionsrestrictions and (ii) the registration rights in respect thereof shall continue to the Exchange Securities apply (the “"Private Exchange Securities”"). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the Indenture or (ii) an indenture identical to all material respects to the Indenture and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Securities, the Private Exchange Securities and the Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, the Private Exchange Securities or the Securities will have the right to vote or consent as a separate class on any matter. The Private Exchange Securities shall be of the same series as, and the Issuer Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as, the Exchange Securities. Neither the Company nor any of its Subsidiaries shall have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the applicable Exchange Securities. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable policy of the SEC, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Company, (iii) all governmental approvals shall have been obtained, which approvals the Company deems necessary for the consummation of the Exchange Offer or Private Exchange and (iv) the due tendering of Registrable Securities in accordance with the terms of the Exchange Offer. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Registrable Securities or portions thereof properly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal that is an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the IssuerCompany, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff policy of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that those set forth in the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECtwo preceding paragraphs. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicableapplicable and deliver information to be used in connection with the Shelf Registration Statement within a reasonable time period in order to have their Securities included in the Shelf Registration Statement, that it is not a broker-dealer tendering Registrable Securities acquired directly from the Company for its own account, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall Company may inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and and, if so informed, the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Westpoint Stevens Inc)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (i) unless the Exchange Offer would not be permitted by applicable law or SEC policy, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities Transfer Restricted Notes (other than Private Exchange Securities, if issuedNotes (as defined below)) for a like principal amount of Exchange SecuritiesNotes, (ii) unless the Exchange Offer would not be permitted by applicable law or SEC policy, use its reasonable best efforts to cause have such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeTime (the "Target Effectiveness Date"), (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) unless the Exchange Offer would not be permitted by applicable law or SEC policy, commence the Exchange Offer and use its reasonable best efforts to issue issue, on or prior to the date which is 30 days after the date on which the Exchange Securities Offer Registration Statement was declared effective by the SEC (the "Target Consummation Date"), Exchange Notes in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly Notes tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities Transfer Restricted Notes acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with Notes) and to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities Notes at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Offer the Initial Purchaser holds Purchasers hold any Securities Notes acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, 9 -8- the Issuer shall, Company upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities Notes in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities Notes held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities Notes (the “"Private Exchange Securities”Notes"). The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical to all material respects to the Indenture and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter. The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities Notes shall be of the same series as, as and the Issuer Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities Notes bear the same CUSIP number as the Exchange Notes. The Company shall not have any liability under this Agreement solely as a result of such Private Exchange Notes not bearing the same CUSIP number as the Exchange Notes. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Company to proceed with the Exchange SecuritiesOffer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company deems necessary for the consummation of the Exchange Offer or Private Exchange. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Securities Transfer Restricted Notes or portions thereof properly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which is an exhibit thereto;
(ii) accept for exchange all Securities duly Notes properly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Transfer Restricted Notes or portions thereof so accepted for exchange by the IssuerCompany, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security Note or Private Exchange SecurityNote, as the case may be, equal in principal amount to the principal amount of the Securities Transfer Restricted Notes surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that those set forth in the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECimmediately preceding paragraph. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities Transfer Restricted Notes in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To If, on the extent Outside Date, all of the Securities are not prohibited by any applicable law or applicable SEC policyFreely Tradable, the Issuer Co-Issuers and the Guarantors shall, for the benefit of the Holders and Holders, at the Issuer’s cost Co-Issuers’ and the Guarantors’ cost, (iA) prepare and file with the SEC within 90 days no later than the 30th day after the Closing Time Outside Date, an Exchange Offer Registration Statement on an appropriate form under with respect to a proposed Exchange Offer and the Securities Act covering the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its their commercially reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective effective, under the Securities 1933 Act by not later than the SEC on or prior to the 180th 120th day after the Closing TimeOutside Date, (iiiC) use its their commercially reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and Offer, (ivD) commence use their commercially reasonable efforts to cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 days the 150th day after the Closing Time. Upon Outside Date, and (E) upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming provided that such Holder (a) is not an affiliate of the either Co-Issuer within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Co-Issuers for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with If all of the Securities are Freely Tradable as of the Outside Date, then the Co-Issuers and the Guarantors shall not be required to prepare, file or cause to be declared effective the Exchange OfferOffer Registration Statement or consummate the Exchange Offer and shall not be liable to the Initial Purchasers, the Issuer Holders or any other Person for any failure to do so. If an Exchange Offer Registration Statement is filed and declared effective, pursuant to the foregoing paragraph, the Co-Issuers and the Guarantors shall:
(ia) mail as promptly as reasonably practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York 5:00 p.m. (Eastern time), on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. A Holder that wishes to exchange Registrable Securities in the Exchange Offer shall be required to (a) represent that (i) it is not an affiliate of either Co-Issuer within the meaning of Rule 405 under the 1933 Act, (ii) all Exchange Securities to be received by it shall be acquired in the ordinary course of its business and (iii) at the time of the consummation of the Exchange Offer it shall have no arrangement or understanding with any person to participate in the distribution (within the meaning of the 1▇▇▇ ▇▇▇) of the Exchange Securities and (b) make such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations. If such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, such broker-dealer will be required to acknowledge that it will deliver a Prospectus in connection with any resale of the Exchange Securities (and the Co-Issuers hereby agree and undertake to provide any such broker-dealer with such number of Prospectuses as such broker-dealer may reasonably request for such purpose). If, after the Outside Date and prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Co-Issuers upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Co-Issuers on a senior secured basis, that are identical (to the Exchange Securities, except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities restrictions (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions or “Additional Interest” provisions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that the Exchange Securities, the Private Exchange Securities and the Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, the Private Exchange Securities or the Securities will have the right to vote or consent as a separate class on any matter. The Private Exchange Securities shall be of the same series as, as and the Issuer Co-Issuers shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities, if at any time the same is possible. The Co-Issuers shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. As soon as reasonably practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Co-Issuers shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act1▇▇▇ ▇▇▇) of the Exchange Securities and shall have made such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form F-4 or other appropriate form under the 1933 Act available and (iv) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offer or the Private Exchange which, in the Co-Issuers’ judgment, would reasonably be expected to impair the ability of the Co-Issuers to proceed with the Exchange Offer or the Private Exchange. If the Co-Issuers determine in their reasonable judgment that any of the foregoing conditions are not satisfied, the Co-Issuers may (a) refuse to accept any Registrable Securities and return all tendered Registrable Securities to the tendering Holders, (b) extend the Exchange Offer and retain all Registrable Securities tendered before the expiration of the Exchange Offer, subject, however, to the rights of holders to withdraw those Registrable Securities, or (c) waive the unsatisfied conditions with respect to the Exchange Offer or the Private Exchange and accept all properly tendered Registrable Securities that have not been withdrawn (unless to do so could reasonably be expected to materially and adversely affect one or more tendering Holders in its capacity as such); provided that the foregoing shall not limit the right of Holders to receive, or the obligation of the Co-Issuers to pay, Additional Interest as provided by Section 2.5. The Issuer Co-Issuers shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Navios Maritime Holdings Inc.)
Exchange Offer. To The Company and the extent not prohibited by any applicable law or applicable SEC policy, the Issuer Guarantor shall, for at their own cost, prepare and, no later than 270 days after the benefit of the Holders and at the Issuer’s cost (i) date hereof, file with the SEC within 90 days after Securities and Exchange Commission (the Closing Time an “SEC”) a registration statement (the “Exchange Offer Registration Statement Statement”) on an appropriate form under the Securities Act covering of 1933, as amended (the “Securities Act”), with respect to a proposed offer by (the Issuer “Exchange Offer”) to the Holders to exchange all of the Registrable Securities (other than Private as defined in Section 6 hereof), who are not prohibited by any law or policy of the SEC from participating in the Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, if issued) for a like aggregate principal amount of notes of the Company issued under the Indenture, guaranteed by the Guarantor and identical in all other material respects to the Initial Securities (except for the transfer restrictions relating to the Initial Securities and the provisions relating to the matters described in Section 6 hereof) that would be registered under the Securities Act (such notes, together with the guarantee thereof, the “Exchange Securities, (ii) ”). Each of the Company and the Guarantor shall use its all commercially reasonable best efforts to cause such Exchange Offer Registration Statement to be declared become effective under the Securities Act by the SEC on or prior to the 180th day within 360 days after the Closing Timedate hereof and, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of unless the Exchange Offer and (iv) would not be permitted by applicable law or SEC policy, commence the Exchange Offer and use its all commercially reasonable best efforts to issue on or prior to 30 business days, or longer, if required by applicable securities laws, after the date on which the Exchange Offer Registration Statement was declared effective by the SEC, Exchange Securities in exchange for all Registrable Initial Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer. If the Company and the Guarantor effect the Exchange Offer, the Company and the Guarantor will be entitled to close the Exchange Offer not later than 225 20 business days after the Closing Timecommencement thereof provided that the Company and the Guarantor have accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Exchange Offer. Upon Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Guarantor shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and of Registrable Securities (as defined in Section 6 hereof) electing to exchange Registrable the Initial Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Company or the Guarantor within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own accountAct, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning distribution of the Exchange Securities Act) and is not prohibited by any law or policy of the SEC from participating in the Exchange Securities), with Offer) to trade such Exchange Securities, Registrable Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and without material restrictions under state the securities laws of the several states of the United States. Each of the Company and the Guarantor acknowledges that, pursuant to current interpretations by the SEC’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker or dealer (a “blue sky” lawsBroker-Dealer”) registered with the SEC under the Exchange Act (as defined below) electing to exchange Securities, acquired for its own account as a result of market making activities or other trading activities, for Registrable Securities (an “Exchanging Dealer”), is required to deliver a prospectus that conforms with the requirements of the Securities Act and the Trust Indenture Act for use in connection with resales of any such Exchange Securities received by such Exchanging Dealer pursuant to the Exchange Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities acquired in exchange for Initial Securities constituting any portion of an unsold allotment is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. Each of the Company and the Guarantor shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Registrable Securities; provided, however, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company and the Guarantor shall make such prospectus and any amendment or supplement thereto, available to any Broker-Dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Exchange Offer. The Initial Securities and the Exchange Securities are herein collectively called the “Securities”. In connection with the Exchange Offer, the Issuer Company and the Guarantor shall:
(ia) mail to each Holder a copy of the Prospectus prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”)Holders;
(iiic) utilize the services of the Trustee a depositary for the Exchange OfferOffer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(ivd) permit Holders to withdraw tendered Initial Securities at any time prior to the close of business, New York time, on the last Business Day of business day on which the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will Offer shall remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein)open; and
(vie) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securitieslaws. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company and the Guarantor shall:
(ix) accept for exchange all the Initial Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer;
(iiy) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all the Initial Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(z) cause the Trustee under the Indenture to promptly authenticate and deliver promptly to each HolderHolder of the Initial Securities, a new Exchange Security or Private Exchange Security, as the case may be, Securities equal in principal amount to the principal amount Initial Securities of the Securities surrendered by such Holder and so accepted for exchange. To The Indenture will provide that the extent Exchange Securities will not prohibited by any law or applicable interpretation be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the staff of Securities will have the SEC, the Issuer shall use its reasonable best efforts right to complete vote or consent as a class separate from one another on any matter. Interest on each Exchange Security issued pursuant to the Exchange Offer as provided abovewill accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Exchange Offer shall be required to represent to the Company and shall comply the Guarantor (which representation and warranty may be contained in the letter of transmittal or “agent’s message” transmitted via The Depository Trust Company’s Automated Tender Offer Procedures) that at the time of the consummation of the Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the applicable requirements distribution of the Exchange Securities within the meaning of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issuediii) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of “affiliate,” as defined in Rule 405 under of the Securities Act, of the Company or the Guarantor or if it is such an affiliate, it 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 any it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities to be received by and (v) if such Holder is a Broker-Dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be acquired required to acknowledge that it will deliver a prospectus in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement connection with any Person to participate in the distribution (within the meaning resale of the Securities Act) of the such Exchange Securities. The Issuer shall inform Notwithstanding any other provisions hereof, the Initial Purchasers, after consultation Company and the Guarantor will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Trustee Securities Act and the Initial Purchasersrules and regulations thereunder, (ii) any Exchange Offer 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 misleading and (iii) any 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 required to be stated therein or necessary in order to make the statements therein, in the light of the names and addresses of the Holders to whom the Exchange Offer is circumstances under which they were made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofnot misleading.
Appears in 1 contract
Sources: Registration Rights Agreement (Pilgrims Pride Corp)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Operating Partnership shall, for the benefit of the Holders and Holders, at the Issuer’s cost Operating Partnership's cost, (iA) file with the SEC within use its reasonable best efforts to prepare and, as soon as practicable but not later than 90 days after the Closing Time Date, file with the SEC an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 135 days of the Closing TimeDate, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer Offer, and (ivD) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in cause the Exchange Offer to be consummated not later than 225 180 days after following the Closing TimeDate. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Operating Partnership shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Operating Partnership within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Operating Partnership for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business 's business, and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Operating Partnership shall:
(ia) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Operating Partnership upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Operating Partnership that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “"Private Exchange Securities”"). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the "TIA"), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that the Exchange Securities, the Private Exchange Securities and the Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, the Private Exchange Securities or the Securities will have the right to vote or consent as a separate class on any matter. The Private Exchange Securities shall be of the same series as, as and the Issuer Operating Partnership shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. The Operating Partnership shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Operating Partnership shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer does not violate applicable or the Private law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act1933 ▇▇▇) of ▇▇ the Exchange Securities. The Issuer Securities and shall inform have made such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the Initial Purchasersuse of Form S-4 or other appropriate form under the 1933 Act available, after consultation and (iv) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with the Trustee and the Initial Purchasers, of the names and addresses of the Holders respect to whom the Exchange Offer is madeor the Private Exchange which, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation Operating Partnership's judgment, would reasonably be expected to impair the ability of the Operating Partnership to proceed with the Exchange Offer in accordance with this Section 2(a), or the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.Private
Appears in 1 contract
Sources: Registration Rights Agreement (Simon Debartolo Group L P)
Exchange Offer. To (a) The Company agrees to file at its sole cost and expense with the extent not SEC no later than the Filing Date, unless prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange (the "EXCHANGE OFFER") any and all of the Registrable Transfer Restricted Securities (other than Private Exchange Securities, if issuedany) for a like aggregate principal amount of Securities of the Company, which are substantially identical in all material respects to the Securities (the "EXCHANGE SECURITIES") and which are entitled to the benefits of the Indenture or a trust indenture which is substantially identical in all material respects to the Indenture (other than such changes to such Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the Trust Indenture Act) and which, in either case, has been qualified under the Trust Indenture Act, except that the Exchange Securities (other than Private Exchange Securities, if any) 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 OFFER REGISTRATION STATEMENT") and shall comply with all applicable tender offer rules and regulations under the Exchange Act. The Company agrees to (i) file (or submit on a confidential basis) the Exchange Offer Registration Statement with the SEC on or prior to 75 days after the Issue Date; (ii) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior before the Effectiveness Target Date; (iii) (A) file all pre-effective amendments to the 180th day after the Closing Timesuch Registration Statement as may be necessary in order to cause such Registration Statement to become effective, (iiiB) file, if applicable, a post-effective amendment to such Registration Statement pursuant to Rule 430A under the Securities Act and (C) cause all necessary filings in connection with the registration and qualifications of the Exchange Securities to be made under the blue sky laws of such jurisdictions as are necessary to permit consummation of the Exchange Offer; and (iv) use its reasonable best efforts to have such Registration Statement remain effective until the closing of consummate the Exchange Offer and (iv) commence on or prior to 30 days after the date on which the Exchange Offer and use its reasonable best efforts to issue Registration Statement is declared effective by the SEC. Upon the Exchange Offer Registration Statement being declared effective, the Company will offer the Exchange Securities in exchange for all Registrable surrender of the Securities. If after such Exchange Offer Registration Statement is declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Securities (thereunder is interfered with by any stop order, injunction or other than order or requirement of the Private SEC or any other governmental agency or court, such Exchange Securities, if issued) properly tendered prior thereto Offer Registration Statement shall be deemed not to have become effective for purposes of this Agreement. Each Holder who participates in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer will be required to enable each Holder eligible and electing to exchange Registrable Securities represent that (other than Private Exchange Securities, if issuedi) for any Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities received by it will be acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and its business, (ii) it has no arrangements arrangement or understandings understanding with any Person to participate in the Exchange Offer for the purpose of “distributing” distribution (within the meaning of the Securities Act) of the Exchange Securities), (iii) it is not an "affiliate" (as defined in Rule 405 under the Securities Act) of the Company 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 and (iv) it is not acting on behalf of any Person who could not truthfully make the foregoing representations. If such Holder is not a broker-dealer, such Holder will be required to represent that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities. If such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities, it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Upon consummation of the Exchange Offer in accordance with this Section 2, the Company shall have no further obligation to register Transfer Restricted Securities (other than Private Exchange Securities and other than in respect of any Exchange Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Securities shall be included in the Exchange Offer Registration Statement.
(b) The Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled "Plan of Distribution," reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the Staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Securities 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, in the 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, including all Participating Broker-Dealers (unless such Participating Broker-Dealer will be reselling an unsold allotment from the original sale of the Securities), and after their receiptinclude a statement describing the means by which Participating Broker-Dealers may resell the Exchange Securities. After the consummation of the Exchange Offer, having no limitations or restrictions on their transfer under the Company shall use its best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by any Participating Broker-Dealer subject to the prospectus delivery requirements of the Securities Act and under state securities other Persons, if any, with similar prospectus delivery requirements for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Securities; PROVIDED, HOWEVER, that such period shall not exceed 180 days after the consummation of the Exchange Offer (or “blue sky” lawssuch longer period if extended pursuant to the last paragraph of Section 5 hereof) (the "APPLICABLE PERIOD"). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Securities acquired by them and having, or which are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, the Company, upon the written request of the Initial Purchasers simultaneously with the delivery of the Exchange Securities in the Exchange Offer, shall issue and deliver to the Initial Purchasers in exchange (the "PRIVATE EXCHANGE") for such Securities held by the Initial Purchasers a like principal amount of Securities of the Company, that are substantially identical in all material respects to the Exchange Securities (the "PRIVATE EXCHANGE SECURITIES") (and which are issued pursuant to the same indenture as the Exchange Securities) except for the placement of a restrictive legend on such Private Exchange Securities. The Private Exchange Securities shall bear the same CUSIP number, if any, ISIN number and Common Code as the Exchange Securities to the extent permitted by the CUSIP Service Bureau of Standard & Poor's and other applicable organizations. Interest on the Exchange Securities and the Private Exchange Securities will accrue from the last interest payment date on which interest was paid on the Securities surrendered in exchange therefor or if no interest has been paid on the Securities from the Issue Date. In connection with the Exchange Offer, the Issuer Company shall:
(i1) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii2) utilize the services of the Trustee a depositary for the Exchange OfferOffer with an address in London, England, which may be either the Trustee or an affiliate of the Trustee;
(iv3) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York London time, on the last Business Day of business day on which the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will Offer shall remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein)open; and
(vi4) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. Iflaws, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it rules and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securitiesregulations. As soon as practicable after the close of the Exchange Offer and/or or the Private Exchange, as the case may be, the Issuer Company shall:
(i1) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii2) accept deliver to the Trustees or Authenticating Agent for exchange cancellation of all Securities duly tendered pursuant to the Private Exchangeso accepted for exchange; and
(iii3) deliver, or cause each Trustee promptly to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each HolderHolder of the Securities, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal in global form in aggregate principal amount equal to the principal amount of the respective Securities surrendered by such Holder and so accepted for exchange. To , as further set forth in the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange OfferIndenture. The Exchange Offer Securities and the Private Exchange Securities may be issued under (i) the Indenture or (ii) indenture substantially identical in all material respects to the Indenture which in either event shall provide that (1) the Exchange Securities shall not be subject to any conditions, other than the transfer restrictions set forth in the Indenture and (2) the Private Exchange Securities shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture substantially identical in all material respects to the Indenture shall provide that the Exchange Securities, Private Exchange Securities and Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, Private Exchange Securities or Securities will have the right to vote or consent as a separate class on any matter.
(c) If (i) the Company is not permitted to file the Exchange Offer does Registration Statement or to consummate the Exchange Offer because the Exchange Offer is not violate permitted by applicable law or SEC policy, (ii) any applicable interpretation of the staff of the SEC. Each Holder of Registrable Transfer Restricted Securities that is a "qualified institutional buyer" (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities as defined in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 144A under the Securities Act, or if it is such an affiliate, it will comply with ) notifies the registration and prospectus delivery requirements of the Securities Act Company at least 20 Business Days prior to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer that (a) applicable law or SEC policy prohibits such Holder from participating in accordance the Exchange Offer, (b) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder or (c) such Holder is a broker-dealer and holds Securities acquired directly from the Company or an affiliate of the Company, (iii) the Exchange Offer is not for any other reason consummated within 210 days after the Issue Date, or (iv) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a prospectus must be delivered by the Initial Purchasers in connection with this Section 2(aany offering or sale of Transfer Restricted Securities, then the Company shall promptly deliver written notice thereof (the "SHELF NOTICE") to the Trustees and in the case of clauses (i) and (iii), all Holders and, in the provisions case of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issuedclauses (ii) and (i) the affected Holders, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) at its own cost file a Shelf Registration Statement pursuant to Section 2(b) 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Preem Holdings Ab Publ)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (i) unless the Exchange Offer would not be permitted by applicable law or SEC policy, file with the SEC within 90 days nine months after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities Transfer Restricted Notes (other than Private Exchange Securities, if issuedNotes (as defined below)) for a like principal amount of Exchange SecuritiesNotes, (ii) unless the Exchange Offer would not be permitted by applicable law or SEC policy, use its reasonable best efforts to cause have such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 13 months after the Closing TimeTime (the "Target Effectiveness Date"), (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) unless the Exchange Offer would not be permitted by applicable law or SEC policy, commence the Exchange Offer and use its reasonable best efforts to issue issue, on or prior to the 21st Business Day after the date on which the Exchange Securities Offer Registration Statement was declared effective by the SEC (the "Target Consummation Date"), Exchange Notes in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly Notes tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities Transfer Restricted Notes acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with Notes) and to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities Notes at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Offer the Initial Purchaser holds Purchasers hold any Securities Notes acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities Notes in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities Notes held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities Notes (the “"Private Exchange Securities”Notes"). The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical to all material respects to the Indenture and which, 9 in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter. The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities Notes shall be of the same series as, as and the Issuer Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities Notes bear the same CUSIP number as the Exchange Notes. The Company shall not have any liability under this Agreement solely as a result of such Private Exchange Notes not bearing the same CUSIP number as the Exchange Notes. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Company to proceed with the Exchange SecuritiesOffer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company deems necessary for the consummation of the Exchange Offer or Private Exchange. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Securities Transfer Restricted Notes or portions thereof properly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which is an exhibit thereto;
(ii) accept for exchange all Securities duly Notes properly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Transfer Restricted Notes or portions thereof so accepted for exchange by the IssuerCompany, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security Note or Private Exchange SecurityNote, as the case may be, equal in principal amount to the principal amount of the Securities Transfer Restricted Notes surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that those set forth in the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECimmediately preceding paragraph. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities Transfer Restricted Notes in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities Transfer Restricted Notes that are Private Exchange Securities, if issued, Notes and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register Registrable Securities Transfer Restricted Notes (other than Private Exchange Securities, if issuedNotes) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To (a) The Company agrees to file at its sole cost and expense with the extent not SEC no later than the Filing Date, unless prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange (the "EXCHANGE OFFER") any and all of the Registrable Transfer Restricted Securities (other than Private Exchange Securities, if issuedany) for a like aggregate principal amount of Securities of the Company, which are substantially identical in all material respects to the Securities (the "EXCHANGE SECURITIES") and which are entitled to the benefits of the Indenture or a trust indenture which is substantially identical in all material respects to the Indenture (other than such changes to such Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the Trust Indenture Act) and which, in either case, has been qualified under the Trust Indenture Act, except that the Exchange Securities (other than Private Exchange Securities, if any) 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 OFFER REGISTRATION STATEMENT") and shall comply with all applicable tender offer rules and regulations under the Exchange Act. The Company agrees to (i) file (or submit on a confidential basis) the Exchange Offer Registration Statement with the SEC on or prior to 75 days after the Issue Date; (ii) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior before the Effectiveness Target Date; (iii) (A) file all pre-effective amendments to the 180th day after the Closing Timesuch Registration Statement as may be necessary in order to cause such Registration Statement to become effective, (iiiB) file, if applicable, a post-effective amendment to such Registration Statement pursuant to Rule 430A under the Securities Act and (C) cause all necessary filings in connection with the registration and qualifications of the Exchange Securities to be made under the blue sky laws of such jurisdictions as are necessary to permit consummation of the Exchange Offer; and (iv) use its reasonable best efforts to have such Registration Statement remain effective until the closing of consummate the Exchange Offer and (iv) commence on or prior to 30 days after the date on which the Exchange Offer and use its reasonable best efforts to issue Registration Statement is declared effective by the SEC. Upon the Exchange Offer Registration Statement being declared effective, the Company will offer the Exchange Securities in exchange for all Registrable surrender of the Securities. If after such Exchange Offer Registration Statement is declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Securities (thereunder is interfered with by any stop order, injunction or other than order or requirement of the Private SEC or any other governmental agency or court, such Exchange Securities, if issued) properly tendered prior thereto Offer Registration Statement shall be deemed not to have become effective for purposes of this Agreement. Each Holder who participates in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer will be required to enable each Holder eligible and electing to exchange Registrable Securities represent that (other than Private Exchange Securities, if issuedi) for any Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities received by it will be acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and its business, (ii) it has no arrangements arrangement or understandings understanding with any Person to participate in the Exchange Offer for the purpose of “distributing” distribution (within the meaning of the Securities Act) of the Exchange Securities), (iii) it is not an "affiliate" (as defined in Rule 405 under the Securities Act) of the Company 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 and (iv) it is not acting on behalf of any Person who could not truthfully make the foregoing representations. If such Holder is not a broker-dealer, such Holder will be required to represent that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities. If such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities, it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Upon consummation of the Exchange Offer in accordance with this Section 2, the Company shall have no further obligation to register Transfer Restricted Securities (other than Private Exchange Securities and other than in respect of any Exchange Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Securities shall be included in the Exchange Offer Registration Statement.
(b) The Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled "Plan of Distribution," reasonably acceptable to the Initial Purchaser, which shall contain a summary statement of the positions taken or policies made by the Staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Securities 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, in the judgment of the Initial Purchaser, 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, including all Participating Broker-Dealers (unless such Participating Broker-Dealer will be reselling an unsold allotment from the original sale of the Securities), and after their receiptinclude a statement describing the means by which Participating Broker-Dealers may resell the Exchange Securities. After the consummation of the Exchange Offer, having no limitations or restrictions on their transfer under the Company shall use its best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by any Participating Broker-Dealer subject to the prospectus delivery requirements of the Securities Act and under state securities other Persons, if any, with similar prospectus delivery requirements for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Securities; PROVIDED, HOWEVER, that such period shall not exceed 180 days after the consummation of the Exchange Offer (or “blue sky” lawssuch longer period if extended pursuant to the last paragraph of Section 5 hereof) (the "APPLICABLE PERIOD"). If, prior to consummation of the Exchange Offer, the Initial Purchaser holds any Securities 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, the Company, upon the written request of the Initial Purchaser simultaneously with the delivery of the Exchange Securities in the Exchange Offer, shall issue and deliver to the Initial Purchaser in exchange (the "PRIVATE EXCHANGE") for such Securities held by the Initial Purchaser a like principal amount of Securities of the Company, that are substantially identical in all material respects to the Exchange Securities (the "PRIVATE EXCHANGE SECURITIES") (and which are issued pursuant to the same indenture as the Exchange Securities) except for the placement of a restrictive legend on such Private Exchange Securities. The Private Exchange Securities shall bear the same CUSIP number, if any, ISIN number and Common Code as the Exchange Securities to the extent permitted by the CUSIP Service Bureau of Standard & Poor's and other applicable organizations. Interest on the Exchange Securities and the Private Exchange Securities will accrue from the last interest payment date on which interest was paid on the Securities surrendered in exchange therefor or if no interest has been paid on the Securities from the Issue Date. In connection with the Exchange Offer, the Issuer Company shall:
(i1) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii2) utilize the services of the Trustee a depositary for the Exchange OfferOffer with an address in London, England, which may be either the Trustee or an affiliate of the Trustee;
(iv3) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York London time, on the last Business Day of business day on which the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will Offer shall remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein)open; and
(vi4) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. Iflaws, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it rules and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securitiesregulations. As soon as practicable after the close of the Exchange Offer and/or or the Private Exchange, as the case may be, the Issuer Company shall:
(i1) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii2) accept deliver to the Trustees or Authenticating Agent for exchange cancellation of all Securities duly tendered pursuant to the Private Exchangeso accepted for exchange; and
(iii3) deliver, or cause each Trustee promptly to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each HolderHolder of the Securities, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal in global form in aggregate principal amount equal to the principal amount of the respective Securities surrendered by such Holder and so accepted for exchange. To , as further set forth in the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange OfferIndenture. The Exchange Offer Securities and the Private Exchange Securities may be issued under (i) the Indenture or (ii) indenture substantially identical in all material respects to the Indenture which in either event shall provide that (1) the Exchange Securities shall not be subject to any conditions, other than the transfer restrictions set forth in the Indenture and (2) the Private Exchange Securities shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture substantially identical in all material respects to the Indenture shall provide that the Exchange Securities, Private Exchange Securities and Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, Private Exchange Securities or Securities will have the right to vote or consent as a separate class on any matter.
(c) If (i) the Company is not permitted to file the Exchange Offer does Registration Statement or to consummate the Exchange Offer because the Exchange Offer is not violate permitted by applicable law or SEC policy, (ii) any applicable interpretation of the staff of the SEC. Each Holder of Registrable Transfer Restricted Securities that is a "qualified institutional buyer" (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities as defined in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 144A under the Securities Act, or if it is such an affiliate, it will comply with ) notifies the registration and prospectus delivery requirements of the Securities Act Company at least 20 Business Days prior to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer that (a) applicable law or SEC policy prohibits such Holder from participating in accordance the Exchange Offer, (b) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder or (c) such Holder is a broker-dealer and holds Securities acquired directly from the Company or an affiliate of the Company, (iii) the Exchange Offer is not for any other reason consummated within 210 days after April 10, 2001, or (iv) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchaser a Registration Statement must be filed and a prospectus must be delivered by the Initial Purchaser in connection with this Section 2(aany offering or sale of Transfer Restricted Securities, then the Company shall promptly deliver written notice thereof (the "SHELF NOTICE") to the Trustees and in the case of clauses (i) and (iii), all Holders and, in the provisions case of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issuedclauses (ii) and (i) the affected Holders, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) at its own cost file a Shelf Registration Statement pursuant to Section 2(b) 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Preem Holdings Ab Publ)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Issuers shall, for the benefit of the Holders and Holders, at the Issuer’s cost Issuers' cost, use their best efforts to (i) file cause to be filed with the SEC within 90 60 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Issuers to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause have such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 120 days after the Closing Time, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 150 days after the Closing Time. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Issuers shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer is to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Issuers within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Issuers for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with ) and to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Issuers shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Offer the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Issuers upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company, guaranteed by the Guarantor on a senior subordinated basis, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “"Private Exchange Securities”). The Private ") and which are issued pursuant to the Indenture (which will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that the Exchange Securities, if anythe Private Exchange Securities and the Securities will vote and consent together on all matters as one class and that neither the Exchange Securities, shall be issued under the IndenturePrivate Exchange Securities nor the Securities will have the right to vote or consent as a separate class on any matter). The Private Exchange Securities shall be of the same series as, as and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Issuers shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the IssuerIssuers, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchangeHolder. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Issuers shall use its reasonable their best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer Issuers within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer Issuers shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer Issuers shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (ia) The Issuers agree to file with the SEC within 90 days as soon as practicable after the Closing Time Date, but in no event later than the Filing Date, an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange (the "Exchange Offer") any and all of the Registrable Securities for a like aggregate principal amount of debt securities of the Company which are identical in all material respects to the Notes and guaranteed by the Guarantors with terms identical in all material respects to the Guarantees (the "Exchange Securities") (and which are entitled to the benefits of a trust indenture which is identical in all material respects to the Indenture (other than Private such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualification of such trust indenture under the TIA) and which has been qualified under the TIA), except that the Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) Securities shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain no restrictive legend thereon. The Issuers agree to use its their reasonable best efforts to cause such keep the Exchange Offer Registration Statement open for at least 20 business days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to be declared effective under Holders and to consummate the Securities Act by the SEC Exchange Offer on or prior to the 180th day 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 tender offer rules and regulations under the Exchange Act. If after such Exchange Registration Statement is initially declared effective by the Closing TimeSEC, (iii) use its reasonable best efforts the Exchange Offer or the issuance of the Exchange Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court such Exchange Registration Statement shall be deemed not to have such Registration Statement remain become effective until for purposes of this Agreement. Each Holder who participates in the closing Exchange Offer will be deemed to represent that any Exchange Securities received by it will be acquired in the ordinary course of its busi- ness, that at the time of the consummation of the Exchange Offer and (iv) commence such Holder will have no arrangement with any person to participate in the Exchange Offer and use its reasonable best efforts to issue distribution of the Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness violation of the Exchange Offer Registration Statementprovisions of the Securities Act, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 501(b) of Regulation D under the Securities Act and is not such Holder has full power and authority to exchange the Registrable Securities in exchange for the Exchange Securities. 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 RegistrableSecurities that are Private Exchange Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuers shall have no further obligation to register Registrable Securities (other than Private Exchange Securities and other than Exchange Securities as to which clause (c)(1)(i) hereof applies) pursuant to Section 3 of this Agreement. No securities other than the Exchange Securities shall be included in the Exchange Registration Statement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Registration Statement one or more section(s) 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 (which are available to the Issuers) with respect to the potential "underwriter" status of any broker-dealer tendering Registrable Securities acquired directly from that is the Issuer or an affiliate of the Issuer for its own account, acquires beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Securities in the ordinary course of received by such Holder’s business and has no arrangements or understandings with any Person to participate broker-dealer in the Exchange Offer for (a "Participating Broker-Dealer"), whether such positions or policies have been publicly disseminated by the purpose Staff of “distributing” (within the meaning SEC or such positions or policies, in the reasonable judgment of the Initial Purchaser, 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 delivery requirements of the Securities Act) the Exchange Securities), with such Exchange Securitiesincluding all Participating Broker-Dealers, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and include a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in describing the case of the Initial Purchasers and means by which Participating Broker-Dealers as provided herein); and
(vi) otherwise comply may resell the Exchange Securities. The Issuers shall use their reasonable best efforts to keep the Exchange Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all respects with all applicable laws relating persons subject to the prospectus deliv- ery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange OfferSecurities, provided that such period shall not exceed 180 days (or such longer period if extended pursuant to the last paragraph of Section 5) (the "Applicable Period"). If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds any Securities Notes acquired by it and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company upon the request of such the Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such the Initial Purchaser Purchaser, in exchange (the “"Private Exchange”") for the Securities held by such the Initial Purchaser, a like principal amount of debt securities of the Issuer Company that are identical (except that such securities shall bear appropriate transfer restrictions) in all material respects to the Exchange Securities (the “"Private Exchange Securities”). The ") (and which are issued pursuant to the same indenture as the Exchange Securities) except for the placement of a restrictive legend on such Private Exchange Securities. If possible, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon Interest on the Exchange Securities and Private Exchange Securities 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. Any indenture under which the Exchange Securities or the Private Exchange Securities will be issued shall provide that the holders of any of the Exchange Securities and the Private Exchange Securities will vote and consent together on all matters (to which such holders are entitled to vote or consent) as practicable after one class and that none of the close holders of the Exchange Securities and the Private Exchange Securities will have the right to vote or consent as a separate class on any matter (to which such holders are entitled to vote or consent).
(c) If (1) prior to the 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) in the opinion of counsel, the Exchange Securities would not, upon receipt, be tradable by such Holders who are not affiliates of the Company without restriction un- der the Securities Act and without restrictions under applicable blue sky or state securities laws or (ii) in the opinion of counsel, the SEC is unlikely to permit the consummation of the Exchange Offer and/or (2) subsequent to the consummation of the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, holders of at least a new Exchange Security or Private Exchange Security, as the case may be, equal majority in principal amount to the aggregate principal amount of the Private Exchange Securities surrendered by such Holder and accepted for exchange. To so request with respect to the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete Private Exchange Securities and/or (3) the Exchange Offer as provided aboveis commenced and not consummated prior to the 40th 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 comply with thereafter file an Initial Shelf Registration as set forth in Section 3 (which only in the applicable requirements circumstances contemplated by clause (2) of this sentence will relate solely to the Securities Act, the Private Exchange Act and other applicable laws in connection with the Exchange OfferSecurities). The Exchange Offer shall not be subject parties hereto agree that, following the delivery of a Shelf Notice to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder Holders of Registrable Securities (other than Private Exchange Securitiesonly in the circumstances contemplated by clauses (1) and/or (3) of the preceding sentence), if issued) who wishes the Issuers shall not have any further obligation to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in conduct the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of or the Issuer within the meaning of Rule 405 Private Exchange under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof2.
Appears in 1 contract
Exchange Offer. To Each of the extent not prohibited by any applicable law or applicable SEC policy, Company and the Issuer Guarantor shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost and the Guarantor's cost, (iA) use its reasonable best efforts to prepare and, as soon as practicable within 270 days following the Closing Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 360 days of the Closing TimeDate, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and Offer, (ivD) commence the Exchange Offer and use its reasonable best efforts to issue cause the Exchange Offer to be completed not later than 390 days following the Closing Date, and (E) for a period of 90 days following the consummation of the Exchange Offer, to make available a Prospectus meeting the requirements of the 1933 Act to any such participating broker-dealer for use in connection with any resale of any Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto acquired in the Exchange Offer. If the Company has not completed the Exchange Offer not later than 225 within 405 days after of the Closing TimeDate, then the Company will file as promptly as practicable a Shelf Registration Statement (as described in Section 2.2 hereof). The Exchange Securities will be issued under the Registrar and Transfer and Paying Agency and Calculation Agency Agreement. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Guarantor shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer within the meaning of “affiliate” (as such term is defined in Rule 405 under the Securities Act and ▇▇▇▇ ▇▇▇) of the Company or the Guarantor, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer Company or an affiliate of the Issuer Guarantor for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and or under state securities or “blue sky” sky laws. Exchange Securities will be issued under the Exchange Offer as evidence of the same continuing rights and preferences under the Preferred Securities and the Guarantee. Under no circumstances will the surrender of the Preferred Securities and the issue of Exchange Securities constitute new securities or obligate the Company and the Guarantor to redeem the Preferred Securities. In connection with the Exchange Offer, the Issuer Company and the Guarantor shall:
(ia) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less fewer than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business5:00 PM, New York City time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Preferred Securities exchanged;
(ve) notify each Holder that any Security Registrable Securities not tendered will remain outstanding and continue to accrue interestoutstanding, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds any Preferred Securities acquired by it and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company and the Guarantor upon the request of such the Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such the Initial Purchaser in exchange (the “Private Exchange”) for the Preferred Securities held by such the Initial Purchaser, a like principal amount number of debt securities Preferred Securities of the Issuer Company, unconditionally guaranteed by the Guarantor as to payment of distributions (remuneración) on the Preferred Securities, as well as payment of the redemption price for the Preferred Securities upon any redemption thereof and the liquidation distribution of the Preferred Securities upon the winding-up or liquidation of the Company, that are identical (except that such securities Preferred Securities and Guarantee shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureRegistrar and Transfer and Paying Agency and Calculation Agency Agreement or (ii) a registrar and transfer and paying agency and calculation agency agreement identical in all material respects to the Registrar and Transfer and Paying Agency and Calculation Agency Agreement, and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Registrar and Transfer and Paying Agency and Calculation Agency Agreement but that the Private Exchange Securities shall be subject to such transfer restrictions. The Private Exchange Securities shall be of the same series as, and the Issuer Company shall use its reasonable best efforts to have ensure that the Private Exchange Securities bear the same CUSIP number as as, the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company and the Guarantor shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Registrable Securities duly properly tendered and not validly withdrawn pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, to the Trustee Registrar and Transfer and Paying Agent for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture Registrar and Transfer and Paying Agent promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, to each Holder of Registrable Securities so accepted for exchange in number equal in principal amount to the principal amount number of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Distributions on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which distributions were paid on the Registrable Securities surrendered in exchange therefor or, if no distributions have been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the valid tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act▇▇▇▇ ▇▇▇) of the Exchange SecuritiesSecurities and shall have made such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form F-4 or other appropriate form under the 1933 Act available and (iv) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offer or the Private Exchange which, in the judgment of the Company and the Guarantor, would reasonably be expected to impair the ability of the Company or the Guarantor to proceed with the Exchange Offer or the Private Exchange. The Issuer shall Company and the Guarantor shall, to the extent such information is available to the Company or the Guarantor, inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchaser of the names and addresses of the Holders to whom the Exchange Offer is made, subject to the right of any Holder to object to the disclosure of such information with respect to such Holder, and the Initial Purchasers Purchaser shall have the right right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a)Agreement, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, Company and the Issuer Guarantor shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof2.2 of this Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (BBVA International Preferred, S.A. Unipersonal)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit (a) Each of the Holders and at the Issuer’s cost (i) Issuers agrees to use its best efforts to file with the SEC within 90 days as soon as practicable after the Closing Time Closing, but in no event later than the Filing Date, an offer to exchange (the "Exchange Offer") any and all of the Registrable Notes for a like aggregate 8 principal amount of debt securities of the Company, guaranteed by the Guarantors, which are identical to the Notes (the "Exchange Notes") (and which are entitled to the benefits of the Indenture or a trust indenture which is substantially identical to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA), except that the Exchange Notes shall have been registered pursuant to an effective Registration Statement under the Securities Act. The Exchange Offer Registration Statement on an appropriate form will be registered under the Securities Act covering on the appropriate form (the "Exchange Registration Statement") and will comply with all applicable tender offer by rules and regulations under the Issuer to the Holders to exchange all Exchange Act. Each of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) Issuers agrees to use its reasonable best efforts to (x) cause such the Exchange Offer Registration Statement to be declared become effective under the Securities Act by the SEC on or prior to before the 180th day after the Closing Time, Effectiveness Date; (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iiy) 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 at least 30 days (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close date that notice of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
is mailed to Holders; and (iz) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete consummate the Exchange Offer as provided above, and shall comply with on or prior to the applicable requirements of 60th day following the Securities Act, date on which the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECRegistration Statement is declared effective. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities participates in the Exchange Offer will be required to make certain customary representations represent that any Exchange Notes received by it will be acquired in connection therewiththe ordinary course of its business, including representations 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, and that such Holder is not an affiliate of any of the Issuer Issuers within the meaning of Rule 405 promulgated under the Securities Act, Act or if it is such an affiliate, that it will comply with the registration and prospectus delivery requirements of the Securities Act Act, to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a)2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities Notes that are Private Exchange Securities, if issued, Notes and Exchange Securities Notes held by Participating Broker-DealersDealers (as defined below), and the Issuer Issuers shall have no further obligation to register Registrable Securities Notes (other than Private Exchange Securities, if issuedNotes) pursuant to Section 2(b3 of this Agreement.
(b) hereof.Each of the Issuers shall use its best efforts to keep the Exchange Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Notes, provided that such period shall not exceed 180 days (or such longer period if extended pursuant to the last paragraph of Section 5) (the "Applicable Period"). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them and having, or which are reasonably likely to be determined to have, the status as an unsold allotment in the initial distribution, the Issuers upon the request of either Initial Purchaser shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to such Initial Purchaser, in exchange (the "Private Exchange") for the Notes held by such Initial Purchaser, a like principal amount of debt securities of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes (the "Private Exchange Notes") (and which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes. Interest on the Exchange Notes and Private Exchange Notes will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue. In connection with the Exchange Offer, the Issuers shall:
Appears in 1 contract
Sources: Registration Rights Agreement (Paxson Communications Corp)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer TXU Holdings shall, for the benefit of the Holders and Holders, at the Issuer’s cost TXU Holdings cost, (i) file cause to be filed with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeIssue Date, and (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (or longer if required by applicable law) after the closing date notice of the Exchange Offer and (iv) commence is mailed to the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeHolders. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer TXU Funding shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Securities, if issued) for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer TXU Funding or TXU Holdings within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer TXU Funding for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities) (any Holder meeting all such requirements, hereinafter an "Eligible Holder"), with and to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer TXU Funding and TXU Holdings 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 documentsdocuments (together, the "Notice");
(ii) use their reasonable best efforts to keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice Notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities withdraw, at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, any Notes tendered for exchange by sending to the institution specified in the notice Notice, a telegram, telex, facsimile transmission or letter letter, received before aforesaid time, setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(v) notify each Holder by means of the Notice that any Security Note not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Broker- Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private ExchangeOffer, as the case may be, the Issuer TXU Funding shall:
(i) accept for exchange all Securities Notes or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Notes or portions thereof so accepted for exchange by the Issuer, and TXU Funding; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to the Depositary (or if, the Exchange Notes are in certificated form, each Holder), a new Exchange Security or Private Exchange Security, as the case may be, Notes equal in principal amount to the principal amount of the Securities Notes surrendered by such Holder and accepted for exchangeHolder. Interest on each Exchange Note issued pursuant to the Registered Exchange Offer will accrue from the last date on which interest was paid on the Note surrendered in exchange therefor or, if no interest has been paid on such Note, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer TXU Funding and TXU Holdings shall use its their reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECSEC and that each Holder tendering Notes for exchange shall be an Eligible Holder. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder (i) it is not an affiliate of TXU Funding or TXU Holdings, (ii) the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee Each Holder hereby acknowledges and the Initial Purchasers, of the names agrees that any Participating Broker-Dealer and addresses of the Holders to whom any such Holder using the Exchange Offer is madeto participate in a distribution of the Exchange Notes: (1) could not under SEC policy as in effect on the date of this Agreement rely on the position of the SEC enunciated in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC's letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters (including any no-action letter obtained based on the Initial Purchasers shall have representations in clause (i) above), and (2) must comply with the right to contact registration and prospectus delivery requirements of the Securities Act in connection with the secondary resale transaction and that such Holders a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Item 507 and otherwise facilitate 508, as applicable, of Regulation S-K, the tender SEC standard instructions for filing forms under the Securities Act, if the resales are of Registrable Securities Exchange Notes obtained by such Holder in the Exchange Offerexchange for Notes acquired by such Holder directly from TXU Funding. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer TXU Funding and TXU Holdings shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issuedpursuant to Section 2(b)(iii)) pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Txu Eastern Holdongs LTD)
Exchange Offer. To The Company shall (A) prepare and, as soon as practicable but not later than 90 calendar days following the extent not prohibited by any applicable law or applicable SEC policyClosing Date, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under with respect to a proposed Exchange Offer and the Securities Act covering the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange SecuritiesNotes of each series, if issued) for a like principal amount of Exchange SecuritiesNotes of such series, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after not later than 150 calendar days following the Closing TimeDate, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in cause the Exchange Offer not later than 225 to be consummated within 270 calendar days after following the Closing TimeDate. The Exchange Notes will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) Notes for Exchange Securities Notes (assuming that such Holder (a) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities Notes acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires (c) acquired the Exchange Securities Notes in the ordinary course of such Holder’s 's business and (d) has no arrangements or understandings with any Person person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with Notes) to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and without material restrictions under state the securities laws of a substantial proportion of the several states of the United States. The Exchange Notes will be issued under the Exchange Offer as evidence of the same continuing indebtedness under the Registrable Notes. Under no circumstances will the surrender of the Registrable Notes and the issue of the Exchange Notes constitute new indebtedness or “blue sky” lawsobligate the Company to repay the principal amount of the Registrable Notes in connection with the Exchange Offer. In connection with the Exchange Offer, the Issuer Company shall:
(ia) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, Statement together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days business days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Securities Registrable Notes at any time prior to the close of business, New York time, 5:00 p.m. (Eastern Time) on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal, the principal amount of Securities Registrable Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(ve) notify each Holder that any Security Registrable Notes not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company shall:
(i) accept for exchange all Securities or portions thereof Registrable Notes duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly tendered pursuant deliver to the Private ExchangeTrustee for cancellation all Registrable Notes so accepted for exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof promptly to authenticate and deliver the respective Exchange Notes to each Holder of Registrable Notes so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, in a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount equal to the principal amount of the Securities surrendered by Registrable Notes of such Holder and so accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer The Company shall use its reasonable best efforts to complete keep the Exchange Offer as provided aboveRegistration Statement effective and to amend and supplement the Prospectus contained therein, and shall comply with in order to permit such Prospectus to be lawfully delivered by all Participating Broker-Dealers subject to the applicable prospectus delivery requirements of the Securities Act, 1933 Act for such period of time as such Participating Broker-Dealers must comply with such requirements in order to resell the Exchange Act Notes; provided, however, that (i) such period shall be the lesser of 90 days after the consummation of the Exchange Offer and other applicable laws the date on which all Participating Broker-Dealers have sold all Exchange Notes held by them (unless such period is extended pursuant to the penultimate paragraph of Section 3 below) and (ii) the Company shall make such Prospectus, and any amendment or supplement thereto, available to any such Participating Broker-Dealer for use in connection with any resale of any Exchange Notes for a period of the lesser of 90 days after the consummation of the Exchange OfferOffer and the date on which all Participating Broker-Dealers have sold all Exchange Notes held by them (unless such period is extended pursuant to the penultimate paragraph of Section 3 below). Interest on the Exchange Notes will accrue from the most recent interest payment date to which interest has been paid on the respective Registrable Notes surrendered in exchange therefor or, if no interest has been paid on such Registrable Notes, from the date of original issuance. The Exchange Offer shall not be subject to any conditions, other than (i) that the Exchange Offer Offer, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Notes in accordance with the Exchange Offer, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities Notes exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities Notes to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act▇▇▇▇ ▇▇▇) of the Exchange SecuritiesNotes and shall have made such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form S-4 or other appropriate form under the 1933 Act available and (iv) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offer which, in the judgment of the Company, would reasonably be expected to impair the ability of the Company to proceed with the Exchange Offer. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities Notes in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (i) file cause to be filed with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date that is 270 days after the Closing Time, Issue Date and (iii) use its reasonable best efforts to have such Registration Statement remain effective until promptly offer the closing Exchange Notes in exchange for surrender of the Notes upon the effectiveness of the Exchange Offer Registration Statement, and (iv) commence consummate the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 within 315 days after the Closing TimeIssue Date. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being understood that the objective of such Exchange Offer is to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Securities, if issued) for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange SecuritiesNotes) (any Holder meeting all such requirements, hereinafter an "Eligible Holder"), with and to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) deliver or mail to each Holder that is a registered owner of Registrable Securities a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documentsdocuments (together, the "Notice");
(ii) use its reasonable best efforts to keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice Notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities withdraw, at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, any Notes tendered for exchange by sending to the institution specified in the notice Notice, a telegram, telex, facsimile transmission or letter letter, received before aforesaid time, setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(v) notify each Holder by means of the Notice that any Security Note not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company shall:
(i) accept for exchange all Securities Notes or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Notes or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to the Depositary (or if, the Exchange Notes are in certificated form, each Holder), a new Exchange Security or Private Exchange Security, as the case may be, Notes equal in principal amount to the principal amount of the Securities Notes surrendered by such Holder and accepted for exchangeHolder. Interest on each Exchange Note issued pursuant to the Registered Exchange Offer will accrue from the last date on which interest was paid on the Note surrendered in exchange therefor or, if no interest has been paid on such Note, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECSEC and that each Holder tendering Notes for exchange shall be an Eligible Holder. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder (i) it is not an affiliate of the Issuer within Company, (ii) the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee Each Holder hereby acknowledges and the Initial Purchasers, of the names agrees that any Participating Broker-Dealer and addresses of the Holders to whom any such Holder using the Exchange Offer is madeto participate in a distribution of the Exchange Notes: (1) could not under SEC policy as in effect on the date of this Agreement rely on the position of the SEC enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and Exxon Capi▇▇▇ ▇▇l▇▇▇▇▇ ▇orporation (available May 13, 1988), as interpreted in the SEC's letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters (including any no-action letter obtained based on the Initial Purchasers shall have representations in clause (i) above), and (2) must comply with the right to contact registration and prospectus delivery requirements of the Securities Act in connection with the secondary resale transaction and that such Holders a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Items 507 and otherwise facilitate 508, as applicable, of Regulation S-K, the tender SEC standard instructions for filing forms under the Securities Act, if the resales are of Registrable Securities Exchange Notes obtained by such Holder in exchange for Notes acquired by such Holder directly from the Exchange OfferCompany. Upon consummation of the an Exchange Offer in accordance with this Section 2(a), ): (i) any Eligible Holder that failed to participate in such Exchange Offer shall not be entitled to include any of its Registrable Securities in any Shelf Registration Statement pursuant to this Agreement; (ii) the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities Notes held by Participating Broker-Dealers, ; and (iii) the Issuer Company shall have no further obligation to register any Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofof this Agreement (other than pursuant to Sections 2(b)(iii) and (iv)).
Appears in 1 contract
Exchange Offer. To The Co-Issuers and the extent not prohibited by any applicable law or applicable SEC policy, the Issuer Guarantors shall, for the benefit of the Holders and Holders, at the Issuer’s cost Co-Issuers’ and the Guarantors’ cost, (iA) prepare and file with the SEC within 90 no later than 30 days after the Closing Time Date, an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its their commercially reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective effective, under the Securities 1933 Act not later than 90 days (150 days if the registration statement is subjected to a review by the SEC on or prior to the 180th day staff) after the Closing TimeDate, (iiiC) use its their commercially reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and Offer, (ivD) commence use their commercially reasonable efforts to cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 120 days (180 days if the registration statement is subjected to a review by the SEC staff) after the Closing Time. Upon Date, and (E) upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming provided that such Holder (a) is not an affiliate of the either Co-Issuer within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Co-Issuers for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Co-Issuers and the Guarantors shall:
(ia) mail as promptly as reasonably practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York 5:00 p.m. (Eastern time), on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. A Holder that wishes to exchange Registrable Securities in the Exchange Offer shall be required to (a) represent that (i) it is not an affiliate of either Co-Issuer within the meaning of Rule 405 under the 1933 Act, (ii) all Exchange Securities to be received by it shall be acquired in the ordinary course of its business and (iii) at the time of the consummation of the Exchange Offer it shall have no arrangement or understanding with any person to participate in the distribution (within the meaning of the ▇▇▇▇ ▇▇▇) of the Exchange Securities and (b) make such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations. If such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, such broker-dealer will be required to acknowledge that it will deliver a Prospectus in connection with any resale of the Exchange Securities (and the Co-Issuers hereby agree and undertake to provide any such broker-dealer with such number of Prospectuses as such broker-dealer may reasonably request for such purpose). If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Co-Issuers upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Co-Issuers on a senior secured basis, that are identical (to the Exchange Securities, except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities restrictions (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions or “Additional Interest” provisions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that the Exchange Securities, the Private Exchange Securities and the Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, the Private Exchange Securities or the Securities will have the right to vote or consent as a separate class on any matter. The Private Exchange Securities shall be of the same series as, as and the Issuer Co-Issuers shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities, if at any time the same is possible. The Co-Issuers shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. As soon as reasonably practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Co-Issuers shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act▇▇▇▇ ▇▇▇) of the Exchange Securities and shall have made such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form F-4 or other appropriate form under the 1933 Act available and (iv) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offer or the Private Exchange which, in the Co-Issuers’ judgment, would reasonably be expected to impair the ability of the Co-Issuers to proceed with the Exchange Offer or the Private Exchange. If the Co-Issuers determine in their reasonable judgment that any of the foregoing conditions are not satisfied, the Co-Issuers may (a) refuse to accept any Registrable Securities and return all tendered Registrable Securities to the tendering Holders, (b) extend the Exchange Offer and retain all Registrable Securities tendered before the expiration of the Exchange Offer, subject, however, to the rights of holders to withdraw those Registrable Securities, or (c) waive the unsatisfied conditions with respect to the Exchange Offer or the Private Exchange and accept all properly tendered Registrable Securities that have not been withdrawn (unless to do so could reasonably be expected to materially and adversely affect one or more tendering Holders in its capacity as such); provided that the foregoing shall not limit the right of Holders to receive, or the obligation of the Co-Issuers to pay, Additional Interest as provided by Section 2.5. The Issuer Co-Issuers shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Navios Maritime Holdings Inc.)
Exchange Offer. (i) To the extent not prohibited by any applicable law or applicable SEC policypolicy of the SEC, the Issuer Issuers shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (iA) prepare and, as soon as practicable but not later than 120 days after the Issue Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Issuers to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (iiB) use its reasonable their best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeIssue Date, (iiiC) use its reasonable their best efforts to have keep such Registration Statement remain effective until the closing of the Exchange Offer and (ivD) use their best efforts to commence the Exchange Offer and use its reasonable best efforts and, on or prior to 240 days after the Issue Date, issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Issuers shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (A) is not an affiliate of the Issuer Issuers within the meaning of Rule 405 under the Securities Act or, if such Holder is an affiliate, that it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (B) is not a broker-dealer tendering Registrable Transfer Restricted Securities acquired directly from the Issuer or an affiliate of the Issuer Issuers for its own account, acquires (C) acquired the Exchange Securities in the ordinary course of such Holder’s 's business and (D) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with ) and to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. .
(ii) In connection with the Exchange Offer, the Issuer Issuers shall:
(iA) after the effectiveness of the Exchange Offer Registration Statement, mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iiB) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”"EXCHANGE PERIOD");
(iiiC) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivD) permit Holders to withdraw tendered Securities at any time prior to the close of business, 5:00 p.m. (New York time, ) on the last Business Day of the Exchange Period, Period by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchanged;
(vE) notify each Holder that any Security Securities not tendered or withdrawn will remain outstanding and continue to accrue interest, interest but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viF) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. .
(iii) If, prior to consummation of the Exchange Offer, an Offer the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Issuers upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”"PRIVATE EXCHANGE") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are Company, guaranteed by the Guarantors, issued pursuant to, and entitled to the benefits of, the Indenture and identical (to the Exchange Securities, except that such securities shall bear appropriate transfer restrictionsrestrictions (the "PRIVATE EXCHANGE SECURITIES").
(iv) to the The Exchange Securities (and the “Private Exchange Securities”). The Private Exchange Securities, if any, Securities shall be issued under (A) the Indenture or (B) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Securities, the Private Exchange Securities and the Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, the Private Exchange Securities or the Securities shall have the right to vote or consent as a separate class on any matter. The Private Exchange Securities shall be of the same series as, and the Issuer Company shall use its reasonable best efforts seek to have cause the CUSIP Service Bureau to issue the same CUSIP numbers for the Private Exchange Securities bear as for the Exchange Securities issued pursuant to the Exchange Offer; provided that the Company shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not having the same CUSIP number as the applicable Exchange Securities. .
(v) The Exchange Offer and the Private Exchange shall not be subject to any conditions other than (A) in the reasonable opinion of counsel to the Company, the Exchange Offer, or Private Exchange, as the case may be, does not violate applicable law or any applicable policy of the SEC, (B) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which, in the judgment of the Issuers, would reasonably be expected to impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange nor shall any material adverse development have occurred in any such action or proceeding with respect to the Issuers, (C) all governmental approvals which the Issuers deem reasonably necessary for the consummation of the Exchange Offer or Private Exchange shall have been obtained and (D) the due tendering of Transfer Restricted Securities in accordance with the terms of the Exchange Offer.
(vi) As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Issuers shall:
(iA) accept for exchange all Securities or portions thereof properly tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to Offer or the Private Exchange; and
(iiiB) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the IssuerIssuers, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, representing the same indebtedness, and for greater certainty, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. .
(vii) To the extent not prohibited by any law or applicable interpretation of the staff policy of the SEC, the Issuer Issuers shall use its reasonable their best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that (A) such Holder is not an affiliate of any of the Issuer Issuers within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, that it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that (B) it is not a broker-dealer tendering Transfer Restricted Securities acquired directly from the Issuers for its own account, (C) any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer (D) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. Each Participating Broker-Dealer will be required to acknowledge that it will deliver the Prospectus included in the Exchange Offer Registration Statement in connection with the resale of Exchange Securities to the extent it is subject to the prospectus delivery requirements of the SEC. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. .
(viii) Upon consummation of the Exchange Offer in accordance with this Section 2(a), (A) the provisions of this Agreement shall continue to apply, mutatis mutandismodified as necessary, solely with respect to Registrable Transfer Restricted Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, Dealers and Transfer Restricted Securities entitled to a Shelf Registration pursuant to the Issuer first paragraph of Section 2(b) hereof and (B) the Company shall have no further obligation to register Registrable any Transfer Restricted Securities (other than Private Exchange Securities, if issued) the registration of Transfer Restricted Securities pursuant to Section 2(b) hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Norske Skog Canada LTD)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (ia) The Issuers agree to file with the SEC within 90 days after SEC, on or before the Closing Time Filing Date, an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange (the "EXCHANGE OFFER") any and all of the Registrable Securities for a like aggregate principal amount of senior subordinated debt securities of the Company which are identical to the Notes and are guaranteed, jointly and severally, by each of the Guarantors with terms identical to the Guaranties (the "EXCHANGE SECURITIES") (and which are entitled to the benefits of a trust indenture that is substantially identical to the Indenture (other than Private such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualification of such trust indenture under the TIA) and which has been qualified under the TIA), except that the Exchange Securities, if issuedSecurities shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain no restrictive legend thereon. The Exchange Offer will be registered under the Securities Act on the appropriate form (the "EXCHANGE OFFER REGISTRATION STATEMENT") for a like principal amount and will comply with all applicable tender offer rules and regulations under the Exchange Act. Each of Exchange Securities, (ii) the Issuers agrees to use its reasonable best efforts (i) to cause such the Exchange Offer Registration Statement to be declared become effective under and to commence the Securities Act by the SEC Exchange Offer on or prior to the 180th day after the Closing TimeEffectiveness Date, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) to 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 30 days (or longer if required by applicable law) (the last day of such period referred to herein as period, the “Exchange Period”);
"EXPIRATION DATE") and (iii) utilize the services of the Trustee to exchange Exchange Securities for all Notes validly tendered and not withdrawn pursuant to the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time Offer on or prior to the close fifth day following the Expiration Date. Each Holder who participates in the Exchange Offer will be deemed to represent that any Exchange Securities received by it will be acquired in the ordinary course of its business, New York time, on that at the last Business Day time of the consummation of the Exchange Period, by sending Offer such Holder will have no arrangement with any Person to the institution specified participate in the notice a telegram, telex, facsimile transmission or letter setting forth distribution of the name Exchange Securities in violation of such Holder, the principal amount provisions of the Securities delivered for exchange Act and a statement that such Holder is withdrawing such Holder’s election not an affiliate of any of the Issuers within the meaning of the Securities Act. 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 that are Private Exchange Securities, Exchange Securities to which Section 2(c)(v) is applicable and Exchange Securities held by Participating Broker-Dealers, and the Issuers shall have such no further obligation to register Registrable Securities exchanged;(other than Private Exchange Securities and other than Exchange Securities as to which Section 2(c)(v) hereof applies) pursuant to Section 3 of this Agreement. No securities other than the Exchange Securities shall be included in the Exchange Offer Registration Statement.
(vb) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except The Issuers shall include within the Prospectus contained in the case Exchange Offer Registration Statement a section entitled "Plan of Distribution," reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the Initial Purchasers positions taken or policies made by the Staff of the SEC (and publicly disseminated) with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Securities received by such broker-dealer in the Exchange Offer (a "PARTICIPATING BROKER-DEALER"). Such "Plan of Distribution" section shall also allow the use of the prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers as provided herein); and
(vi) otherwise comply may resell the Exchange Securities. Each of the Issuers shall use its best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all respects with all applicable laws relating Persons subject to the prospectus delivery requirements of the Securities Act for at least 180 days following the first bona fide offering of securities under such Registration Statement (or such shorter time as such Persons must comply with such requirements in order to resell the Exchange OfferSecurities) (the "APPLICABLE PERIOD"). If, prior to consummation of the Exchange Offer, an any Initial Purchaser holds any Securities Notes acquired by it and such Securities have having, or which are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, the Issuer shall, Issuers upon the request of such Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser Purchaser, in exchange (the “Private Exchange”"PRIVATE EXCHANGE") for the Securities Notes held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities and are guaranteed, jointly and severally, by each of the Guarantors with terms identical to the Guaranties (the “"PRIVATE EXCHANGE SECURITIES") (and which are issued pursuant to the same indenture as the Exchange Securities) (except for the placement of a restrictive legend on such Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after Interest on the close Exchange Securities and Private Exchange Securities 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. Any indenture under which the Exchange Securities or the Private Exchange Securities will be issued shall provide that the holders of any of the Exchange Offer and/or Securities and the Private Exchange, Exchange Securities will vote and consent together on all matters to which such holders are entitled to vote or consent as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered one class and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount that none of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement holders of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Private Exchange Offer is made, and the Initial Purchasers shall Securities will have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofvote or consent as a separate class on any matter.
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Issuers shall, for the benefit of the Holders and Holders, at the Issuer’s cost Issuers' cost, use their best efforts to (i) file cause to be filed with the SEC within 90 45 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Issuers to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause have such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 120 days after the Closing Time, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence cause the Exchange Offer to be consummated following the effectiveness of the Exchange Offer Registration Statement and use its reasonable best efforts to issue issue, on or prior to 30 Business Days after the date on which the Exchange Offer Registration Statement was declared effective by the SEC, Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Issuers shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Issuers within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Issuers for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with ) and to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Issuers shall:
(iI) 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;
(iiII) 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”");
(iiiIII) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivIV) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viV) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Offer the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Issuers upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company, Guaranteed by the Subsidiary Guarantors on a senior basis, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “"Private Exchange Securities”"). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the Indenture or (ii) an indenture identical to all material respects to the Indenture and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Securities, the Private Exchange Securities and the Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, the Private Exchange Securities or the Securities will have the right to vote or consent as a separate class on any matter. The Private Exchange Securities shall be of the same series as, as and the Issuer Issuers shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. Neither the Company nor any of its Subsidiaries shall have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the 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 Issuer and (iii) all governmental approvals shall have been obtained, which approvals the Issuer deems necessary for the consummation of the Exchange Offer or Private Exchange. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Issuers shall:
(i) accept for exchange all Registrable Securities or portions thereof properly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which is an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the IssuerIssuers, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Issuers shall use its reasonable their best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that those set forth in the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECimmediately preceding paragraph. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer Issuers within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer Issuers shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer Issuers shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (McRaes Stores Partnership)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policypolicy of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, use its best efforts to (i) file cause to be filed with the SEC within 90 60 days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause have such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 120 days after the Closing TimeIssue Date, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts and, on or prior to 30 Business Days after the date on which the Exchange Offer Registration Statement was declared effective by the SEC, issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with ) and to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, 8 together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date of notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Offer the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company upon the request of any such Initial PurchaserPurchaser shall, to the extent not prohibited by any applicable law or applicable policy of the SEC, use its best efforts to simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company, that are identical (to the Exchange Securities, except that (i) such securities shall bear appropriate transfer restrictionsrestrictions and (ii) the registration rights in respect thereof shall continue to the Exchange Securities apply (the “"Private Exchange Securities”"). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the Indenture or (ii) an indenture identical to all material respects to the Indenture and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Securities, the Private 9 Exchange Securities and the Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, the Private Exchange Securities or the Securities will have the right to vote or consent as a separate class on any matter. The Private Exchange Securities shall be of the same series as, and the Issuer Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as, the Exchange Securities. Neither the Company nor any of its Subsidiaries shall have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the applicable Exchange Securities. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable policy of the SEC, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Company, (iii) all governmental approvals shall have been obtained, which approvals the Company deems necessary for the consummation of the Exchange Offer or Private Exchange and (iv) the due tendering of Registrable Securities in accordance with the terms of the Exchange Offer. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Registrable Securities or portions thereof properly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal that is an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the IssuerCompany, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the 10 case may be, equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff policy of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that those set forth in the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECtwo preceding paragraphs. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicableapplicable and deliver information to be used in connection with the Shelf Registration Statement within a reasonable time period in order to have their Securities included in the Shelf Registration Statement, that it is not a broker-dealer tendering Registrable Securities acquired directly from the Company for its own account, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall Company may inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and and, if so informed, the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Westpoint Stevens Inc)
Exchange Offer. To The Company and the extent not prohibited by any applicable law or applicable SEC policy, the Issuer Guarantors shall, for the benefit of the Holders and Holders, at their cost, (A) prepare and, not later than 120 days following the Issuer’s cost (i) Closing Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities, if issued) for of a like principal amount of Exchange Securities, (iiB) use its their commercially reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 180 days of the Closing Time, Date and (iiiC) use its their commercially reasonable best efforts to have such Registration Statement remain effective until the closing of cause the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 210 days after following the Closing TimeDate. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Guarantors shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with and has made representations to the Company to that effect) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company and the Guarantors shall:
(ia) mail as promptly as practicable after the Exchange Offer Registration Statement has been declared effective under the 1933 Act to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Registrable Securities exchanged;
(ve) notify each Holder that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Initial Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company and the Guarantors upon the request of any such Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company on a senior basis, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private For the avoidance of doubt, such Exchange Securities, if any, Securities shall be issued under likewise guaranteed by the IndentureGuarantors. The Exchange Securities and the Private Exchange Securities shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that the Initial Securities, the Exchange Securities and the Private Exchange Securities shall vote and consent together on all matters as one class and that none of the same series asExchange Securities, and the Issuer Private Exchange Securities or the Initial Securities will have the right to vote or consent as a separate class on any matter. The Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. Neither the Company nor any of the Guarantors shall have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company and the Guarantors shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Initial Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law last date on which interest was paid on the Registrable Securities surrendered in exchange therefor (or applicable interpretation if the Exchange Security or Private Exchange Security is authenticated between a record date and an interest payment date with respect to the Registrable Securities surrendered in exchange therefor, from such interest payment date) or, if no interest has been paid on such Registrable Securities, from the date of original issuance of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Initial Securities Act, the Exchange Act and other applicable laws surrendered in connection with the Exchange Offerexchange therefor. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act▇▇▇▇ ▇▇▇) of the Exchange SecuritiesSecurities and shall have made such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form S-4 or other appropriate form under the 1933 Act available, (iv) all governmental approvals which the Company reasonably deems necessary for the consummation of the Exchange Offer and the Private Exchange shall have been obtained and (v) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offer or the Private Exchange which, in the Company’s judgment, would reasonably be expected to impair the ability of the Company or any of the Guarantors to proceed with the Exchange Offer or the Private Exchange. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost cost, (i) file cause to be filed with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its all commercially reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 270 days after the Closing Time, Issue Date and (iii) use its reasonable best efforts to have such Registration Statement remain effective until promptly offer the closing Exchange Notes in exchange for surrender of the Notes upon the effectiveness of the Exchange Offer Registration Statement, and (iv) commence consummate the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 within 315 days after the Closing TimeIssue Date. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, unless the Exchange Offer would not be permitted by applicable law or applicable interpretation of the staff of the SEC, it being understood that the objective of such Exchange Offer is to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Securities, if issued) for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange SecuritiesNotes) (any Holder meeting all such requirements, hereinafter an “Eligible Holder”), with and to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail furnish to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documentsdocuments (together, the “Notice”);
(ii) use all commercially reasonable efforts to keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice Notice thereof is mailed furnished to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities withdraw, at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, any Notes tendered for exchange by sending to the institution specified in the notice Notice, a telegram, telex, facsimile transmission or letter letter, received before aforesaid time, setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Securities Notes exchanged;
(v) notify each Holder by means of the Notice that any Security Note not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company shall:
(i) accept for exchange all Securities Notes or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Notes or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to the Depositary (or if, the Exchange Notes are in certificated form, each Holder), a new Exchange Security or Private Exchange Security, as the case may be, Notes equal in principal amount to the principal amount of the Securities Notes surrendered by such Holder and accepted for exchangeHolder. Interest on each Exchange Note issued pursuant to the Exchange Offer will accrue from the last date on which interest was paid on the Note surrendered in exchange therefor or, if no interest has been paid on such Note, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its all commercially reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act. Except as set forth herein, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECSEC and that each Holder tendering Notes for exchange shall be an Eligible Holder. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, without limitation, representations that such Holder (i) it is not an affiliate of the Issuer within Company, (ii) the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee Each Holder hereby acknowledges and the Initial Purchasers, of the names agrees that any Participating Broker-Dealer and addresses of the Holders to whom any such Holder using the Exchange Offer is madeto participate in a distribution of the Exchange Notes: (1) could not under SEC policy as in effect on the date of this Agreement rely on the position of the SEC enunciated in ▇▇▇▇▇ & ▇▇▇▇ LLP (available February 7, 1997), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC’s letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters (including, without limitation, any no-action letter obtained based on the Initial Purchasers shall have representations in clause (i) above), and (2) must comply with the right to contact registration and prospectus delivery requirements of the Securities Act in connection with the secondary resale transaction and that such Holders a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Item 507 and otherwise facilitate 508, as applicable, of Regulation S-K, the tender SEC standard instructions for filing forms under the Securities Act, if the resales are of Registrable Securities Exchange Notes obtained by such Holder in exchange for Notes acquired by such Holder directly from the Exchange OfferCompany. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issuedpursuant to Section 2(b)(iii)) pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Oncor Electric Delivery Co LLC)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policypolicy of the SEC, the Issuer Issuers shall, for the benefit of the Holders and Holders, at the Issuer’s cost Issuers' cost, (i) file cause to be filed with the SEC within 90 120 days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Issuers to the Holders to exchange all of the Registrable Transfer Restricted Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its their commercially reasonable best efforts to cause have such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeIssue Date, (iii) use its their commercially reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) use their commercially reasonable best efforts to commence the Exchange Offer and use its reasonable best efforts and, on or prior to 210 days after the Issue Date, issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Issuers shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Transfer Restricted Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Issuers within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Transfer Restricted Securities acquired directly from the Issuer or an affiliate of the Issuer Issuers for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with ) and to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Issuers shall:
(i) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York 5:00 p.m. (Eastern time, ) on the last Business Day of the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, Offer an Initial Purchaser holds any Securities acquired by it and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Issuers upon the request of such Initial PurchaserPurchaser shall, to the extent not prohibited by any applicable law or applicable policy of the SEC, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company, guaranteed by the Guarantors, that are issued pursuant to, and entitled to the benefits of, the Indenture and are identical (to the Exchange Securities, except that such securities shall bear appropriate transfer restrictionsrestrictions (the "Private Exchange Securities"). The Exchange Securities and the Private Exchange Securities shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Securities (other than the “Private Exchange Securities”)) shall not be subject to the transfer restrictions set forth in the Indenture. The Private Indenture or such indenture shall provide that the Exchange Securities, if anythe Private Exchange Securities and the Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, shall be issued under the IndenturePrivate Exchange Securities or the Securities will have the right to vote or consent as a separate class on any matter. The Private Exchange Securities shall be of the same series as, and the Issuer Issuers shall use its their commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as, the Exchange Securities. The Issuers shall use their commercially reasonable best efforts to have the Exchange Securities bear the same CUSIP number as the Outstanding Notes. The Issuers shall not have any liability hereunder solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities or the Exchange Securities not bearing the same CUSIP number as the Outstanding Notes. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) in the reasonable opinion of counsel to the Issuers, the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable policy of the SEC, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange SecuritiesOffer or the Private Exchange nor shall any material adverse development have occurred in any such action or proceeding with respect to the Issuers, (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange and (iv) the due tendering of Transfer Restricted Securities in accordance with the terms of the Exchange Offer. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Issuers shall:
(i) accept for exchange all Transfer Restricted Securities or portions thereof properly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal that is an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Transfer Restricted Securities or portions thereof so accepted for exchange by the IssuerIssuers, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Transfer Restricted Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff policy of the SEC, the Issuer Issuers shall use its their commercially reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Transfer Restricted Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Transfer Restricted Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer Issuers within the meaning of Rule 405 under the Securities Act, or if that it is such an affiliate, it will comply with not a broker-dealer tendering Transfer Restricted Securities acquired directly from the registration and prospectus delivery requirements of the Securities Act to the extent applicableCompany for its own account, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. Each Participating Broker-Dealer and affiliate of any of the Issuers within the meaning of Rule 405 under the Securities Act will be required to acknowledge that it will deliver the Prospectus included in the Exchange Offer Registration Statement in connection with the resale of Exchange Securities to the extent it is subject to the prospectus delivery requirements of the SEC. The Issuer Issuers shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Transfer Restricted Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Transfer Restricted Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, Dealers and the Issuer shall have no further obligation Transfer Restricted Securities entitled to register Registrable Securities (other than Private Exchange Securities, if issued) a Shelf Registration pursuant to the first paragraph of Section 2(b) hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Atrium Companies Inc)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Company shall, for the benefit of the Holders and -------------- Holders, at the Issuer’s cost Company's cost, (i) unless the Exchange Offer would not be permitted by applicable law or SEC policy, file with the SEC within 90 60 days after the Closing Time Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities Transfer Restricted Notes (other than Private Exchange Securities, if issuedNotes (as defined below)) for a like principal amount of Exchange SecuritiesNotes, (ii) unless the Exchange Offer would not be permitted by applicable law or SEC policy, use its reasonable best efforts to cause have such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 120 days after the Closing TimeDate (the "Target Effectiveness -------------------- Date"), (iii) use its reasonable best efforts to have such Registration Statement remain effective until the ---- closing of the Exchange Offer and (iv) unless the Exchange Offer would not be permitted by applicable law or SEC policy, commence the Exchange Offer and use its reasonable best efforts to issue issue, on or prior to the date which is 30 days after the date on which the Exchange Securities Offer Registration Statement was declared effective by the SEC (the "Target Consummation Date"), Exchange Notes in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly ------------------------ Notes tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities Transfer Restricted Notes acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with Notes) and to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");; ---------------
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities Notes at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Offer the Initial Purchaser holds Purchasers hold any Securities Notes acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities Notes in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private ------- Exchange”") for the Securities Notes held by such Initial Purchaser, a like principal amount -------- of debt securities of the Issuer Company that are identical (except that such securities shall bear appropriate transfer restrictionsrestrictions and shall provide for the payment of Additional Interest) to the Exchange Securities Notes (the “"Private Exchange Securities”---------------- Notes"). ----- The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical to all material respects to the Indenture and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter. The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities Notes shall be of the same series as, as and the Issuer Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities Notes bear the same CUSIP number as the Exchange Notes. The Company shall not have any liability under this Agreement solely as a result of such Private Exchange Notes not bearing the same CUSIP number as the Exchange Notes. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Company to proceed with the Exchange SecuritiesOffer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company deems necessary for the consummation of the Exchange Offer or Private Exchange. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Securities Transfer Restricted Notes or portions thereof properly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which is an exhibit thereto;
(ii) accept for exchange all Securities duly Notes properly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Transfer Restricted Notes or portions thereof so accepted for exchange by the IssuerCompany, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security Note or Private Exchange SecurityNote, as the case may be, equal in principal amount to the principal amount of the Securities Transfer Restricted Notes surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that those set forth in the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECimmediately preceding paragraph. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities Transfer Restricted Notes in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis ------- mutandis, solely with respect to Registrable Securities Transfer Restricted Notes that are Private -------- Exchange Securities, if issued, Notes and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register Registrable Securities Transfer Restricted Notes (other than Private Exchange Securities, if issuedNotes) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To (a) The Company shall file with the SEC, to the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, no later than the Issuer shall use its reasonable best efforts Filing Date an offer to complete exchange (the "Exchange Offer Offer") any and all of the Registrable Notes (other than the Private Exchange Notes, if any) for a like aggregate principal amount of debt securities of the Company that are identical in all material respects to the Notes (the "Exchange Notes") (and that are entitled to the benefits of the Indenture or a trust indenture that is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as provided above, and shall are necessary to comply with the applicable any requirements of the Securities ActSEC to effect or maintain the qualification thereof under the TIA) and that, in either case, has been qualified under the TIA), except that the Exchange Notes (other than Private Exchange Notes, if any) shall have been registered pursuant to an effective Registration Statement under the Securities Act and other applicable laws in connection with the Exchange Offershall contain no restrictive legend thereon. The Exchange Offer shall not be subject 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. The Company agrees to any conditions, other than that 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 does not violate open for at least 20 business days (or longer if required by applicable law 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 240th day following the Issue Date. If after such Exchange Registration Statement is declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Notes thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any applicable interpretation other governmental agency or court, such Exchange Registration Statement shall be deemed not to have become effective for purposes of the staff of the SECthis Agreement. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities participates in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, represent that any Exchange Securities to be Notes received by it will be acquired in the ordinary course of business and its business, that at the time of the commencement consummation of the Exchange Offer it has such Holder will have no arrangement or understanding with any Person to participate in the distribution (of the Exchange Notes in violation of the provisions of the Securities Act and that such Holder is not an affiliate of the Company within the meaning of the Securities Act) Act and is not acting on behalf of any persons or entities who could not truthfully make the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offerforegoing representations. Upon consummation of the Exchange Offer in accordance accor- dance with this Section 2(a)2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities Notes that are Private Exchange Securities, if issued, Notes and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register Registrable Securities Notes (other than Private Exchange Securities, if issuedNotes and other than in respect of any Exchange Notes as to which clause 2(c)(v) hereof applies) pursuant to Section 2(b3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Registration Statement.
(b) The Company shall include within the Prospectus contained in the Exchange Registration Statement a section entitled "Plan of Distribution," reasonably acceptable to the Initial Purchasers, that 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, in the 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, including all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes. The Company shall use its reasonable best efforts to keep the Exchange Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to 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 consummation of the Exchange Offer (or such longer period if extended pursuant to the last paragraph of Section 5 hereof) (the "Applicable Period"). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by it and having, or that are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, the Company, upon the written request of the Initial Purchasers simul- taneously with the delivery of the Exchange Notes in the Exchange Offer, shall issue and deliver to the Initial Purchasers in exchange (the "Private Exchange") for such Notes held by the Initial Purchasers a like principal amount of debt securities of the Company that are identical in all material respects to the Exchange Notes (the "Private Exchange 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 shall bear the same CUSIP number as the Exchange Notes. Interest on the Exchange Notes and the Private Exchange Notes will accrue from the Issue Date. In connection with the Exchange Offer, the Company shall:
(1) mail to each Holder a copy of the Prospectus forming part of the Exchange Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last business day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(1) accept for exchange all Notes properly tendered and not validly withdrawn pursuant to the Exchange Offer or the Private Exchange;
(2) deliver to the Trustee for cancellation all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in princi- pal amount to the Notes of such Holder so accepted for exchange. The Exchange Notes and the Private Exchange Notes may be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture, which in either event shall provide that (1) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (2) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes not exchanged in the Exchange Offer shall vote and consent together on all matters as one class and that neither the Exchange Notes, the Private Exchange Notes or such Notes will have the right to vote or consent as a separate class on any matter.
(c) If (i) the Company is not permitted to file the Exchange Offer Registration Statement or to consummate the Exchange Offer because the Exchange Offer is not permitted by any applicable law or applicable interpretation of the staff of the Commission or (ii) any holder of a Note notifies the Company that (A) due to a change in law or policy it is not entitled to participate in the Exchange Offer, (B) due to a change in law or policy it may not resell 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 by such holder or (C) it owns Notes (including any Initial Purchaser that holds Notes as part of an unsold allotment from the original offering of the Notes) acquired directly from the Company or an affiliate of the Company or (iii) any holder of Private Exchange Notes so requests after the consummation of the Private Exchange or (iv) the Company has not consummated the Exchange Offer within 240 days after the Issue Date (each such event referred to in clauses (i) through (iv), a "Shelf Filing Event"), then the Company shall promptly deliver written notice thereof (the "Shelf Notice") to the Holders and the Trustee and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Universal Compression Inc)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, use its best efforts to (i) file cause to be filed with the SEC within 90 60 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 120 days after the Closing Time, (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until the closing consummation of the Exchange Offer and (iv) commence cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 150 days after the Closing Time. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”"EXCHANGE PERIOD");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior If any Purchaser reasonably determines upon advice of its outside counsel that it is not eligible to consummation of participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Securities constituting any Securities acquired by it and such Securities have the status portion of an unsold allotment in the initial distribution, as soon as practicable upon receipt by the Issuer shall, upon the Company of a written request from such Purchaser and an opinion of outside counsel for such Initial Purchaser, simultaneously reasonably satisfactory in form and substance to outside counsel of the Company, to the effect that such exchange does not require compliance with the delivery of registration requirements under the Exchange Securities in Act, the Exchange Offer, Company shall issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”"PRIVATE EXCHANGE") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private "PRIVATE EXCHANGE SECURITIES") and which are issued pursuant to the Indenture (which will provide that the Exchange Securities”). The Private Securities will not be subject to the transfer restrictions set forth in the Indenture and that the Exchange Securities, if anythe Private Exchange Securities and the Securities will vote and consent together on all matters as one class and that neither the Exchange Securities, shall be issued under the IndenturePrivate Exchange Securities nor the Securities will have the right to vote or consent as a separate class on any matter). The Private Exchange Securities shall be of the same series as, as the Exchange Securities and the Issuer shall use its reasonable best efforts Company will seek to have cause the CUSIP Service Bureau to issue the same CUSIP Number for the Private Exchange Securities bear as for the same CUSIP number as Exchange Securities issued pursuant to the applicable Exchange SecuritiesOffer. As soon as practicable after the close of the Exchange Offer and/or or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder Holder. Interest on each Exchange Security and accepted for exchangePrivate Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Securities surrendered in exchange therefor or, if no interest has been paid on the Securities, from the date of original issue of the Securities. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer and each Purchaser who holds and wishes to exchange Registrable Securities for Exchange Securities in the Private Exchange will be required to make certain customary representations in connection therewith, including including, in the case of any Holder, representations that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities ActAct or, or if it is such an affiliate, it that such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a) (whether or not the actions or events specified in the first sentence of this Section 2(a) occur within the time periods specified therefor), the provisions of this Agreement shall continue to apply, mutatis mutandisMUTATIS MUTANDIS, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Leiner Health Products Inc)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (i) file cause to be filed with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 270 days after the Closing Time, Issue Date and (iii) use its reasonable best efforts to have such Registration Statement remain effective until promptly offer the closing Exchange Notes in exchange for surrender of the Notes upon the effectiveness of the Exchange Offer Registration Statement, and (iv) commence consummate the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 within 315 days after the Closing TimeIssue Date. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being understood that the objective of such Exchange Offer is to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Securities, if issued) for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities) (any Holder meeting all such requirements, hereinafter an "Eligible Holder"), with and to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documentsdocuments (together, the "Notice");
(ii) use its reasonable best efforts to keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice Notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities withdraw, at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, any Notes tendered for exchange by sending to the institution specified in the notice Notice, a telegram, telex, facsimile transmission or letter letter, received before aforesaid time, setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(v) notify each Holder by means of the Notice that any Security Note not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company shall:
(i) accept for exchange all Securities Notes or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Indenture Trustee for cancellation all Securities Notes or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Indenture Trustee under the Indenture to promptly authenticate and deliver to the Depositary (or if, the Exchange Notes are in certificated form, each Holder), a new Exchange Security or Private Exchange Security, as the case may be, Notes equal in principal amount to the principal amount of the Securities Notes surrendered by such Holder and accepted for exchangeHolder. Interest on each Exchange Note issued pursuant to the Registered Exchange Offer will accrue from the last date on which interest was paid on the Note surrendered in exchange therefor or, if no interest has been paid on such Note, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECSEC and that each Holder tendering Notes for exchange shall be an Eligible Holder. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder (i) it is not an affiliate of the Issuer within Company, (ii) the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee Each Holder hereby acknowledges and the Initial Purchasers, of the names agrees that any Participating Broker-Dealer and addresses of the Holders to whom any such Holder using the Exchange Offer is madeto participate in a distribution of the Exchange Notes: (1) could not under SEC policy as in effect on the date of this Agreement rely on the position of the SEC enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and Exxon Ca▇▇▇▇▇ H▇▇▇▇▇▇▇ Corporation (available May 13, 1988), as interpreted in the SEC's letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters (including any no-action letter obtained based on the Initial Purchasers shall have representations in clause (i) above), and (2) must comply with the right to contact registration and prospectus delivery requirements of the Securities Act in connection with the secondary resale transaction and that such Holders a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Item 507 and otherwise facilitate 508, as applicable, of Regulation S-K, the tender SEC standard instructions for filing forms under the Securities Act, if the resales are of Registrable Securities Exchange Notes obtained by such Holder in exchange for Notes acquired by such Holder directly from the Exchange OfferCompany. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issuedpursuant to Section 2(b)(iii)) pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Oncor Electric Delivery Co)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyExcept as set forth in Section 2(b) below, the Issuer Company and the Guarantor shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, use its reasonable best efforts to (i) file with the SEC within 90 150 calendar days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer relating to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 210 calendar days after the Closing TimeIssue Date, (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (or longer if required by applicable law) after the closing date notice of the Exchange Offer is mailed to the Holders and (iv) commence cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 be consummated within 240 calendar days after the Closing TimeIssue Date. Upon Promptly after the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities for a like principal amount of Exchange Notes together with the Exchange Guarantees (other than Private Exchange Securities, if issued) for Exchange Securities (assuming provided that such Holder (i) is not an affiliate Affiliate of the Issuer within Company or the meaning of Rule 405 under the Securities Act and Guarantor, (ii) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own accountCompany, (iii) acquires the Exchange Securities in the ordinary course of such Holder’s 's business and (iv) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company and the Guarantor shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange OfferOffer with respect to Notes represented by a global certificate;
(iv) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York City time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice to Holders, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Registrable Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Qwest Communications International Inc)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (ia) The Issuers agree to file with the SEC within 90 days after no later than the Closing Time Filing Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange (the "Exchange Offer") any and all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issuedany) properly tendered prior thereto for a like aggregate principal amount of debt securities of the Company, guaranteed on a senior subordinated basis by the Guarantors, which are identical in all material respects to the Securities (the "Exchange Securities") (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 any requirements of the SEC to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA), except that the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issuedany) for Exchange Securities (assuming that such Holder is not shall have been registered pursuant to an affiliate of the Issuer within the meaning of Rule 405 effective Registration Statement under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has shall contain no arrangements or understandings with any Person to participate in the restrictive legend thereon. The Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer 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 state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer shall:
Act. The Issuers agree to use their respective best efforts to (ix) mail to each Holder a copy of the Prospectus forming part of cause the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (iiy) keep the Exchange Offer open for acceptance for a period of not less than at least 20 Business Days after the date notice thereof is mailed to the Holders business days (or longer if required by applicable law) (such period referred to herein as after the “Exchange Period”);
(iii) utilize the services date that notice of the Trustee for Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time Offer on or prior to the close of business195th day following the Issue Date. If after such Exchange Registration Statement is declared effective by the SEC, New York time, on the last Business Day of the Exchange Period, by sending to Offer or the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery issuance of the Exchange Securities in the Exchange Offerthereunder is prevented by any stop order, 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 injunction or other order or requirement of the Issuer that are identical (except that SEC or any other governmental agency or court, such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, Registration Statement shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts deemed not to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close become effective for purposes of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECthis Agreement. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities participates in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, represent that any Exchange Securities to be received by it will be acquired in the ordinary course of business and its business, that at the time of the commencement consummation of the Exchange Offer it has such Holder will have no arrangement or understanding with any Person to participate in the distribution (of the Exchange Securities in violation of the provisions of the Securities Act, and that such Holder is not an affiliate of any of the Issuers within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a)2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer Issuers shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issuedSecurities and other than in respect of any Exchange Securities as to which clause 2(c)(v) hereof applies) pursuant to Section 2(b3 hereof. No securities other than the Exchange Securities shall be included in 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 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 expressly permit the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including all Par- ticipating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Securities. The Issuers shall use their respective best efforts to keep the Exchange Registration Statement effective and to amend and supplement the Prospectus contained therein for a period of 180 days after consummation of the Exchange Offer (or such longer period if extended pursuant to the last paragraph of Section 5 hereof.) (the "Applicable Period"), in order to permit such Prospectus to be lawfully delivered by any Participating Broker-Dealer subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Securities. 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 Company shall, upon the request of any of the Initial Purchasers, simultaneously with the delivery of the Exchange Securities in the Exchange Offer issue and deliver to the Initial Purchasers in exchange (the "Private Exchange") for such Securities held by the Initial Purchasers a like principal amount of debt securities of the Company, guaranteed on a senior subordinated basis by the Guarantors, that are identical in all material respects to the Exchange Securities (the "Private Exchange Securities") (and which are issued pursuant to the same indenture as the Exchange Securities) except for the placement of a restrictive legend on such Private Exchange Securities. The Private Exchange Securities shall bear the same CUSIP number as the Exchange Securities. Interest on the Exchange Securities and the Private Exchange Securities will accrue from the last interest payment date on which interest was paid on the Securities surrendered in exchange therefor or, if no interest has been paid on the Securities, from the Issue Date. In connection with the Exchange Offer, the Issuers shall:
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (ia) The Issuers agree to file with the SEC within 90 days as soon as practicable after the Closing Time Issue Date, but in no event later than the Filing Date, an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange (the "Exchange Offer") any and all of the Registrable Securities for a like aggregate principal amount of debt securities of the Issuers which are identical in all material respects to the Notes (the "Exchange Securities") (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 Private such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualification of such trust indenture under the TIA) and which has been qualified under the TIA), except that the Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) Securities shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain no legend thereon with respect to restrictions on transfer pursuant to the Securities Act. The Issuers agree to use its their reasonable best efforts to cause such keep the Exchange Offer Registration Statement open for at least 20 business days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to be declared effective under Holders and to consummate the Securities Act by the SEC Exchange Offer on or prior to the 180th day 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 tender offer rules and regulations under the Exchange Act. If after such Exchange Registration Statement is initially declared effective by the Closing TimeSEC and prior to the consummation of the Exchange Offer, (iii) use its reasonable best efforts the Exchange Offer or the issuance of the Exchange Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court such Exchange Registration Statement shall be deemed not to have such Registration Statement remain become effective until for purposes of this Agreement. Each Holder who participates in the closing Exchange Offer will be deemed to represent that any Exchange Securities received by it will be acquired in the ordinary course of its business, that at the time of the consummation of the Exchange Offer and (iv) commence such Holder will have no arrangement with any person to participate in the Exchange Offer and use its reasonable best efforts to issue distribution of the Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness violation of the Exchange Offer Registration Statementprovisions of the Securities Act, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (Issuers 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 the first four sentences of this Section 2(a)) shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuers shall have no further obligation to register Registrable Securities (other than Private Exchange Securities and other than Exchange Securities as to which clause (c)(1)(i) hereof applies) pursuant to Section 3 of this Agreement. No securities other than the Exchange Securities shall be included in the Exchange Registration Statement, except to the extent required by contractual obligations in effect on the Issue Date.
(b) The Issuers shall include within the Prospectus contained in the Exchange Registration Statement one or more section(s) reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the publicly disseminated positions of the Staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Securities received by such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"). Such section(s) shall also allow the use of the prospectus by all persons subject to the prospectus delivery requirements of the Securities Act (other than a Participating Broker Dealer (an "Excluded Participating Broker Dealer") who either (x) acquired Notes other than for its own account as a result of market-making activities or other trading activities or (y) has entered into any arrangement or understanding with any Issuer or any affiliate of any Issuer to distribute the Exchange Securities), with such ) and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Securities, from . The Issuers shall use their reasonable best efforts to keep the Exchange Registration Statement effective and after their receipt, having no limitations or restrictions on their transfer under 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 and under state securities for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided, however, that such period shall not exceed 120 days (or “blue sky” laws. In connection with such longer period if extended pursuant to the last paragraph of Section 5) (the "Applicable Period"); provided, further, however, that, if requested by the Company in the letter of transmittal for the Exchange Offer, such persons shall have expressed that they may be subject to such requirements and have undertaken to use their reasonable best efforts to notify the Issuer shall:
Company when they are no longer subject to such requirements (i) mail if they are no longer subject to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities requirements at any time prior to the close of business, New York time, on the last Business Day expiration of the Exchange Applicable Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities Notes acquired by it and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Issuers upon the request of such Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to each such Initial Purchaser Purchaser, in exchange (the “"Private Exchange”") for the Securities Notes held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Issuers that are identical (except that such securities shall bear appropriate transfer restrictions) in all material respects to the Exchange Securities (the “"Private Exchange Securities”). The ") (and which are issued pursuant to the same indenture as the Exchange Securities) except for the placement of a restrictive legend on such Private Exchange Securities. If practicable, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon Interest on the Exchange Securities and Private Exchange Securities 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. Any indenture under which the Exchange Securities or the Private Exchange Securities will be issued shall provide that the holders of any of the Exchange Securities and the Private Exchange Securities will vote and consent together on all matters (to which such holders are entitled to vote or consent) as practicable after one class and that none of the close holders of the Exchange Securities and the Private Exchange Securities will have the right to vote or consent as a separate class on any matter (to which such holders are entitled to vote or consent).
(c) If (1) prior to the consummation of the Exchange Offer, the Issuers reasonably determine in good faith or Holders of a majority in aggregate principal amount of the Registrable Securities notify the Issuers that they have reasonably determined in good faith that (i) in the opinion of counsel, the Exchange Securities would not, upon receipt, be tradeable by such Holders who are not affiliates of the Issuers or Excluded participating Broker Dealers without registration under the Securities Act and without registration under applicable blue sky or state securities laws or (ii) in the opinion of counsel, the SEC is unlikely to permit the consummation of the Exchange Offer and/or (2) subsequent to the consummation of the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all any holder of Private Exchange Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant so requests with respect to the Private Exchange; and
Exchange Securities and/or (iii3) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided aboveis commenced and not consummated prior to the 60th day following the Consummation Date for any reason, then the Issuers shall promptly deliver to the Holders and the Trustee notice thereof (the "Shelf Notice") and shall comply with thereafter file an Initial Shelf Reg istration as set forth in Section 3 (which only in the applicable requirements circumstances contemplated by clause (2) of this sentence will relate solely to the Securities Act, the Private Exchange Act and other applicable laws in connection with the Exchange OfferSecurities) pursuant to Section 3. The Exchange Offer shall not be subject parties hereto agree that, following the delivery of a Shelf Notice to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder Holders of Registrable Securities (other than Private Exchange Securitiesonly in the circumstances contemplated by clauses (1) and/or (3) of the preceding sentence), if issued) who wishes the Issuers shall not have any further obligation to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in conduct the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of or the Issuer within the meaning of Rule 405 Private Exchange under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof2.
Appears in 1 contract
Sources: Registration Rights Agreement (United Auto Group Inc)
Exchange Offer. (i) To the extent not prohibited by any applicable law or applicable SEC policypolicy of the SEC, the Issuer Issuers shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (iA) prepare and, as soon as practicable but not later than 120 days after the Issue Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Issuers to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (iiB) use its reasonable their best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeIssue Date, (iiiC) use its reasonable their best efforts to have keep such Registration Statement remain effective until the closing of the Exchange Offer and (ivD) use their best efforts to commence the Exchange Offer and use its reasonable best efforts and, on or prior to 240 days after the Issue Date, issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Issuers shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (A) is not an affiliate of the Issuer Issuers within the meaning of Rule 405 under the Securities Act or, if such Holder is an affiliate, that it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (B) is not a broker-dealer tendering Registrable Transfer Restricted Securities acquired directly from the Issuer or an affiliate of the Issuer Issuers for its own account, acquires (C) acquired the Exchange Securities in the ordinary course of such Holder’s 's business and (D) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with ) and to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. .
(ii) In connection with the Exchange Offer, the Issuer Issuers shall:
(iA) after the effectiveness of the Exchange Offer Registration Statement, mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iiB) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”"EXCHANGE PERIOD");
(iiiC) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivD) permit Holders to withdraw tendered Securities at any time prior to the close of business, 5:00 p.m. (New York time, ) on the last Business Day of the Exchange Period, Period by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchanged;
(vE) notify each Holder that any Security Securities not tendered or withdrawn will remain outstanding and continue to accrue interest, interest but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viF) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. .
(iii) If, prior to consummation of the Exchange Offer, an Offer the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Issuers upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”"PRIVATE EXCHANGE") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are Company, guaranteed by the Guarantors, issued pursuant to, and entitled to the benefits of, the Indenture and identical (to the Exchange Securities, except that such securities shall bear appropriate transfer restrictionsrestrictions (the "PRIVATE EXCHANGE SECURITIES").
(iv) to the The Exchange Securities (and the “Private Exchange Securities”). The Private Exchange Securities, if any, Securities shall be issued under (A) the Indenture or (B) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Securities, the Private Exchange Securities and the Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, the Private Exchange Securities or the Securities shall have the right to vote or consent as a separate class on any matter. The Private Exchange Securities shall be of the same series as, and the Issuer Company shall use its reasonable best efforts seek to have cause the CUSIP Service Bureau to issue the same CUSIP numbers for the Private Exchange Securities bear as for the Exchange Securities issued pursuant to the Exchange Offer; provided that the Company shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not having the same CUSIP number as the applicable Exchange Securities. .
(v) The Exchange Offer and the Private Exchange shall not be subject to any conditions other than (A) in the reasonable opinion of counsel to the Company, the Exchange Offer, or Private Exchange, as the case may be, does not violate applicable law or any applicable policy of the SEC, (B) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which, in the judgment of the Issuers, would reasonably be expected to impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange nor shall any material adverse development have occurred in any such action or proceeding with respect to the Issuers, (C) all governmental approvals which the Issuers deem reasonably necessary for the consummation of the Exchange Offer or Private Exchange shall have been obtained and (D) the due tendering of Transfer Restricted Securities in accordance with the terms of the Exchange Offer.
(vi) As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Issuers shall:
(iA) accept for exchange all Securities or portions thereof properly tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to Offer or the Private Exchange; and
(iiiB) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the IssuerIssuers, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. .
(vii) To the extent not prohibited by any law or applicable interpretation of the staff policy of the SEC, the Issuer Issuers shall use its reasonable their best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that (A) such Holder is not an affiliate of any of the Issuer Issuers within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, that it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that (B) it is not a broker-dealer tendering Transfer Restricted Securities acquired directly from the Issuers for its own account, (C) any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer (D) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. Each Participating Broker-Dealer will be required to acknowledge that it will deliver the Prospectus included in the Exchange Offer Registration Statement in connection with the resale of Exchange Securities to the extent it is subject to the prospectus delivery requirements of the SEC. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. .
(viii) Upon consummation of the Exchange Offer in accordance with this Section 2(a), (A) the provisions of this Agreement shall continue to apply, mutatis mutandismodified as necessary, solely with respect to Registrable Transfer Restricted Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, Dealers and Transfer Restricted Securities entitled to a Shelf Registration pursuant to the Issuer first paragraph of Section 2(b) hereof and (B) the Company shall have no further obligation to register Registrable any Transfer Restricted Securities (other than Private Exchange Securities, if issued) the registration of Transfer Restricted Securities pursuant to Section 2(b) hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Norske Skog Canada LTD)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policylaw, the Issuer Company and the Guarantors shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (iA) prepare and, as soon as practicable but not later than 120 days following the Closing Date, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its their reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 210 days following the Closing TimeDate, (iiiC) use its their reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence the Exchange Offer and use its their reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in cause the Exchange Offer to be consummated not later than 225 240 days after following the Closing TimeDate. The Exchange Securities will be issued under the applicable Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Guarantors shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer Company or any of the Guarantors within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer Company or an affiliate any of the Issuer Guarantors for its own account, acquires (c) acquired or will acquire the Exchange Securities in the ordinary course of such Holder’s 's business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” lawssky laws in the United States. In connection with the Exchange Offer, the Issuer Company and the Guarantors shall:
(ia) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, and, in the case of Holders in Canada, any wrapper used in connection with the private placement of the Exchange Offer in Canada, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchanged;
(ve) notify each Holder that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company upon the request of such any Initial PurchaserPurchaser shall, to the extent not prohibited by any applicable law or applicable policy of the SEC, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company on a senior or senior subordinated basis, as the case may be, guaranteed by the Guarantors, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “"Private Exchange Securities”"). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the Indentureapplicable Indenture or (ii) an indenture identical in all material respects to the applicable 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 applicable Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The applicable Indenture or such indenture shall provide that the Exchange Securities, the Private Exchange Securities and the Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, the Private Exchange Securities or the Securities will have the right to vote or consent as a separate class on any matter. The Private Exchange Securities shall be of the same series as, as and the Issuer Company and the Guarantors shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number (or, if applicable, ISIN number) as the applicable Exchange Securities. The Company shall not have any liability hereunder solely as a result of such Private Exchange Securities not having the same CUSIP number as the Exchange Securities, provided that the Company shall have used such commercially reasonable efforts as required by the prior sentence. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company and the Guarantors shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Registrable Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act▇▇▇▇ ▇▇▇) of the Exchange Securities. The Issuer Securities and shall inform have made such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the Initial Purchasersuse of Form S-4 or F-4 or other appropriate form under the 1933 Act available, after consultation as well as any other customary representations in connection therewith, and (iv) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with the Trustee and the Initial Purchasers, of the names and addresses of the Holders respect to whom the Exchange Offer is madeor the Private Exchange which, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation Company's judgment, would reasonably be expected to impair the ability of the Company to proceed with the Exchange Offer in accordance with this Section 2(a), or the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofExchange.
Appears in 1 contract
Sources: Registration Rights Agreement (Brooks Pharmacy, Inc.)
Exchange Offer. To the extent not prohibited by any applicable -------------- law or applicable SEC policy, the Issuer Company shall, for the benefit of the Holders and Holders, at the Issuer’s Company's cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 150 days after the Closing Time, (iii) use its commercially reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 180 days after the Closing Timedate on which the Exchange Offer Registration Statement was declared effective by the SEC. Upon the effectiveness effec- tiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");; ---------------
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement Agree- ment (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial ---------------- Purchaser, a like principal amount of debt securities of the Issuer Company that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “"Private Exchange Securities”"). --------------------------- The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the Indenture or (ii) an indenture identical to the Indenture in all material respects and which, in either case, has been qualified under the TIA and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Securities, the Private Exchange Securities and the Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, the Private Exchange Securities or the Securities will have the right to vote or consent as a separate class on any matter. The Private Exchange Securities shall be of the same series as, and the Issuer Company shall use its commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as as, the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the IssuerCompany, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount at maturity to the principal amount at maturity of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its commercially reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECSEC and that the exchanging holder shall have delivered a validly completed and executed letter of transmittal and such other documents required pursuant to Section 2(a)(i) hereof, including the representations referred to in the next sentence. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make in writing certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis ------- mutandis, solely with respect to Registrable Securities that are Private -------- Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Broker- Dealers, and the Issuer Company shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Fox Kids Worldwide Inc)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (ia) The Issuers agree to file with the SEC within 90 days as soon as practicable after the Closing Time Issue Date, but in no event later than the Filing Date, an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange (the "Exchange Offer") any and all of the Registrable Securities for a like aggregate principal amount of debt securities of the Issuers which are identical in all material respects to the Notes (the "Exchange Securities") (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 Private such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualification of such trust indenture under the TIA) and which has been qualified under the TIA), except that the Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) Securities shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain no legend thereon with respect to restrictions on transfer pursuant to the Securities Act. The Issuers agree to use its their reasonable best efforts to cause such keep the Exchange Offer Registration Statement open for at least 20 business days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to be declared effective under Holders and to consummate the Securities Act by the SEC Exchange Offer on or prior to the 180th day 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 tender offer rules and regulations under the Exchange Act. If after such Exchange Registration Statement is initially declared effective by the Closing TimeSEC and prior to the consummation of the Exchange Offer, (iii) use its reasonable best efforts the Exchange Offer or the issuance of the Exchange Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court such Exchange Registration Statement shall be deemed not to have such Registration Statement remain become effective until for purposes of this Agreement. Each Holder who participates in the closing Exchange Offer will be deemed to represent that any Exchange Securities received by it will be acquired in the ordinary course of its business, that at the time of the consummation of the Exchange Offer and (iv) commence such Holder will have no arrangement with any person to participate in the Exchange Offer and use its reasonable best efforts to issue distribution of the Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness violation of the Exchange Offer Registration Statementprovisions of the Securities Act, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (Issuers 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 the first four sentences of this Section 2(a)) shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuers shall have no further obligation to register Registrable Securities (other than Private Exchange Securities and other than Exchange Securities as to which clause (c)(1)(i) hereof applies) pursuant to Section 3 of this Agreement. No securities other than the Exchange Securities shall be included in the Exchange Registration Statement, except to the extent required by contractual obligations in effect on the Issue Date.
(b) The Issuers shall include within the Prospectus contained in the Exchange Registration Statement one or more section(s) reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the publicly disseminated positions of the Staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Securities received by such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"). Such section(s) shall also allow the use of the prospectus by all persons subject to the prospectus delivery requirements of the Securities Act (other than a Participating Broker Dealer (an "Excluded Participating Broker Dealer") who either (x) acquired Notes other than for its own account as a result of market-making activities or other trading activities or (y) has entered into any arrangement or understanding with any Issuer or any affiliate of any Issuer to distribute the Exchange Securities), with such ) and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Securities, from . The Issuers shall use their reasonable best efforts to keep the Exchange Registration Statement effective and after their receipt, having no limitations or restrictions on their transfer under 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 and under state securities for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided, however, that such period shall not exceed 120 days (or “blue sky” laws. In connection with such longer period if extended pursuant to the last paragraph of Section 5) (the "Applicable Period"); provided, further, however, that, if requested by the Company in the letter of transmittal for the Exchange Offer, such persons shall have expressed that they may be subject to such requirements and have undertaken to use their reasonable best efforts to notify the Issuer shall:
Company when they are no longer subject to such requirements (i) mail if they are no longer subject to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities requirements at any time prior to the close of business, New York time, on the last Business Day expiration of the Exchange Applicable Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities Notes acquired by it and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Issuers upon the request of such Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to each such Initial Purchaser Purchaser, in exchange (the “"Private Exchange”") for the Securities Notes held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Issuers that are identical (except that such securities shall bear appropriate transfer restrictions) in all material respects to the Exchange Securities (the “"Private Exchange Securities”). The ") (and which are issued pursuant to the same indenture as the Exchange Securities) except for the placement of a restrictive legend on such Private Exchange Securities. If practicable, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon Interest on the Exchange Securities and Private Exchange Securities 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. Any indenture under which the Exchange Securities or the Private Exchange Securities will be issued shall provide that the holders of any of the Exchange Securities and the Private Exchange Securities will vote and consent together on all matters (to which such holders are entitled to vote or consent) as practicable after one class and that none of the close holders of the Exchange Securities and the Private Exchange Securities will have the right to vote or consent as a separate class on any matter (to which such holders are entitled to vote or consent).
(c) If (1) prior to the consummation of the Exchange Offer, the Issuers reasonably determine in good faith or Holders of a majority in aggregate principal amount of the Registrable Securities notify the Issuers that they have reasonably determined in good faith that (i) in the opinion of counsel, the Exchange Securities would not, upon receipt, be tradeable by such Holders who are not affiliates of the Issuers or Excluded Participating Broker Dealers without registration under the Securities Act and without registration under applicable blue sky or state securities laws or (ii) in the opinion of counsel, the SEC is unlikely to permit the consummation of the Exchange Offer and/or (2) subsequent to the consummation of the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all any holder of Private Exchange Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant so requests with respect to the Private Exchange; and
Exchange Securities and/or (iii3) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided aboveis commenced and not consummated prior to the 60th day following the Consummation Date for any reason, then the Issuers shall promptly deliver to the Holders and the Trustee notice thereof (the "Shelf Notice") and shall comply with thereafter file an Initial Shelf Reg istration as set forth in Section 3 (which only in the applicable requirements circumstances contemplated by clause (2) of this sentence will relate solely to the Securities Act, the Private Exchange Act and other applicable laws in connection with the Exchange OfferSecurities) pursuant to Section 3. The Exchange Offer shall not be subject parties hereto agree that, following the delivery of a Shelf Notice to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder Holders of Registrable Securities (other than Private Exchange Securitiesonly in the circumstances contemplated by clauses (1) and/or (3) of the preceding sentence), if issued) who wishes the Issuers shall not have any further obligation to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in conduct the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of or the Issuer within the meaning of Rule 405 Private Exchange under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof2.
Appears in 1 contract
Sources: Registration Rights Agreement (United Auto Group Inc)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit (a) Each of the Holders and at the Issuer’s cost (i) Issuers agrees to file with the SEC within 90 days after no later than the Closing Time Filing Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange (the "Exchange Offer") any and all of the Registrable Securities Notes (other than the Private Exchange Notes, if any) for a like aggregate principal amount of debt securities of the Company, guaranteed by the Subsidiary Guarantors, which are identical in all material respects to the Notes (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 any requirements of the SEC to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA), except that the Exchange Notes (other than Private Exchange SecuritiesNotes, if issuedany) for a like principal amount of shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain no restrictive legend thereon. The Exchange Securities, Offer shall be registered under the Securities Act on the appropriate form (iithe "Exchange Registration Statement") and shall comply with all applicable tender offer rules and regulations under the Exchange Act. The Issuers agree to use its reasonable their best efforts to (x) cause such the Exchange Offer Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 business days (or longer if required by applicable law) after the SEC date that notice of the Exchange Offer is mailed to the Holders; and (z) consummate the Exchange Offer on or prior to the 180th day following the Issue Date. If after the Closing Time, (iii) use its reasonable best efforts to have such Exchange Registration Statement remain is declared effective until by the closing SEC, the Exchange Offer or the issuance of the Exchange Offer and (iv) commence 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, such Exchange Offer and use its reasonable best efforts Registration Statement shall be deemed not to issue Exchange Securities have become effective for purposes of this Agreement until such stop order, injunction or other order or requirement is no longer in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto effect. Each Holder who participates in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the will be required to represent that any Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, Notes received by it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities will be acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of its business, that at the time of the consummation of the Exchange Offer such Holder’s business and has Holder will have no arrangements arrangement or understandings understanding with any Person to participate in the distribution of the Exchange Offer for Notes in violation of the purpose provisions of “distributing” (the Securities Act, and that such Holder in not an "affiliate" of any of the Issuers within the meaning of the Securities Act) . Upon consummation of the Exchange SecuritiesOffer in accordance with this Section 2, the Issuers shall have no further obligation to register Registrable Notes (other than
(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 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"), with whether such positions or policies have been publicly disseminated by the Staff of the SEC or such positions or policies, in the judgment of the Initial Purchasers, represent the prevailing views of the Staff of the SEC. Such "Plan of Distribution" section shall also expressly permit the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange SecuritiesNotes. Each of the Issuers shall use its best efforts to keep the Exchange Registration Statement effective and to amend and supplement the Prospectus contained therein, from and after their receipt, having no limitations or restrictions on their transfer under in order to permit such Prospectus to be lawfully delivered by any Participating Broker-Dealer subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not exceed 180 days after the consummation of the Exchange Offer (or such longer period if extended pursuant to the last paragraph of Section 5 hereof) (the "Applicable Period"). If, prior to consummation of the Exchange Offer, either of the Initial Purchasers holds any Notes acquired by it and under state having the status of an unsold allotment in the initial distribution, the Issuers shall, upon the request of either of the Initial Purchasers, simultaneously with the delivery of the Exchange Notes in the Exchange Offer issue and deliver to the Initial Purchasers in exchange (the "Private Exchange") for such Notes held by the Initial Purchasers a like principal amount of debt securities or “blue sky” lawsof the 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 Issuer Issuers shall:
(i1) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii2) utilize the services of the Trustee a depositary for the Exchange OfferOffer with an address in the Borough of Manhattan, The City of New York;
(iv3) permit Holders to withdraw tendered Securities Notes at any time prior to the close of business, New York time, on the last Business Day of business day on which the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will Offer shall remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein)open; and
(vi4) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. Iflaws, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it rules and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securitiesregulations. As soon as practicable after the close of the Exchange Offer and/or or the Private Exchange, as the case may be, the Issuer Issuers shall:
(i1) accept for exchange all Securities or portions thereof Notes tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii2) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Securities or portions thereof Notes so accepted for exchange by the Issuer, and issue, and exchange; and
(3) cause the Trustee under the Indenture to promptly authenticate and deliver promptly to each HolderHolder of Notes, a new Exchange Security Notes or Private Exchange SecurityNotes, as the case may be, equal in principal amount The Exchange Notes and the Private Exchange Notes are to be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the principal amount Indenture, which in either event shall provide that (1) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (2) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as to which they have the right to vote or consent as one class and that none of the Securities surrendered by such Holder and accepted for exchange. To Exchange Notes, the extent not prohibited by Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or applicable interpretation in currently prevailing interpretations of the staff Staff of the SEC, the Issuer shall use its reasonable best efforts Issuers are not permitted to complete effect an Exchange Offer, (ii) the Exchange Offer as provided aboveis not consummated within 180 days after the Issue Date, and shall comply with (iii) any holder of Private Exchange Notes so requests at any time after the applicable requirements consummation of the Securities ActPrivate Exchange, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to or (iv) any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issuedthe Initial Purchasers) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person eligible to participate in the distribution Exchange Offer, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (within the meaning "Shelf Notice") and, in the case of clauses (i) and (ii) above, all Holders, in the case of clause (iii) above, the Holders of the Securities ActPrivate Exchange Notes and, in the case of clause (iv) of above, the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is madeaffected Holder, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) file a Notes Shelf Registration pursuant to Section 2(b3 hereof; provided, however, that in the case of clause (iii) hereofabove such Holders shall pay all reasonable registration expenses of the Company as described in Section 6 hereof in connection with such Notes Shelf Registration.
Appears in 1 contract
Sources: Exchange and Registration Rights Agreement (American Architectural Products Corp)
Exchange Offer. To the extent not prohibited by any applicable -------------- law or applicable SEC policypolicy of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, use its best efforts to (i) file cause to be filed with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause have such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 150 days after the Closing Time, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts and, on or prior to 180 days after the Closing Time, issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with ) and to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 ____ Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");; ---------------
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Offer the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company upon the request of any such Initial PurchaserPurchaser shall, to the extent not prohibited by any applicable law or applicable policy of the SEC, use its best efforts to simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities ---------------- held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company, that are identical (to the Exchange Securities, except that (i) such securities shall bear appropriate transfer restrictionsrestrictions and (ii) the registration rights in respect thereof shall continue to apply (the "Private ------- Exchange Securities"). ------------------- The Exchange Securities (and the “Private Exchange Securities”). The Private Exchange Securities, if any, Securities shall be issued under (i) the Indenture or (ii) an indenture identical to all material respects to the Indenture and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Securities, the Private Exchange Securities and the Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, the Private Exchange Securities or the Securities will have the right to vote or consent as a separate class on any matter. The Private Exchange Securities shall be of the same series as, and the Issuer Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as, the Exchange Securities. Neither the Company nor any of its Subsidiaries shall have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the applicable Exchange Securities. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable policy of the SEC, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Company, (iii) all governmental approvals shall have been obtained, which approvals the Company deems necessary for the consummation of the Exchange Offer or Private Exchange and (iv) the due tendering of Registrable Securities in accordance with the terms of the Exchange Offer. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Registrable Securities or portions thereof properly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal that is an exhibit thereto;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the IssuerCompany, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff policy of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that those set forth in the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECimmediately preceding paragraph. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act, or if that it is such an affiliate, it will comply with not a broker-dealer tendering Registrable Securities acquired directly from the registration and prospectus delivery requirements of the Securities Act to the extent applicableCompany for its own account, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Broker- Dealers, and the Issuer Company shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To (a) The Trust and the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost Company shall (i) prepare not later than March 1, 1997, and file with the SEC within 90 days after the Closing Time Commission an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering with respect to a proposed offer (the offer by the Issuer "Exchange Offer") to the Holders to issue and deliver to such Holders, in exchange all of for the Registrable Securities (other than Private Exchange Preferred Securities, if issued) for a like principal amount of Exchange Preferred Securities, (ii) use its reasonable their best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Timebefore April 29, 1997, (iii) use its reasonable best efforts to have such t▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer Offer, subject to its use by Participating Broker-Dealers (as defined below) as contemplated in Section 3(f) below, and (iv) commence use their best efforts to cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated on a date not later than 225 days after the Closing TimeJune 28, 1997. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Preferred Securities (other than Private Exchange Securities, if issued) for Exchange Preferred Securities (assuming that such Holder is not an affiliate of the Issuer Trust or the Company, within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own accountAct, acquires the Exchange Preferred Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing the Exchange Preferred Securities and, if such Holder is not a broker-dealer, such Holder is not engaged in, and does not intend to engage in, a distribution (within the meaning of the Securities Act) the Exchange Securities), with of such Exchange Preferred Securities, ) and to trade such Exchange Preferred Securities from and after their receipt, having no each such Holder's receipt of the Exchange Preferred Securities without any limitations or restrictions on their transfer under the Securities Act and without material restrictions under state the securities or “blue sky” laws. laws of a substantial proportion of the several states of the United States.
(b) In connection with the Exchange Offer, the Issuer Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize use the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Registrable Preferred Securities at any time prior to the close of business, New York time, on the last Business Day of business day on which the Exchange PeriodOffer shall remain open, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Preferred Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Preferred Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange .
(the “Private Exchange”c) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Trust shall:
(i) accept for exchange all Registrable Preferred Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which is an exhibit thereto;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Registrable Preferred Securities or portions thereof so accepted for exchange by the Issuer, exchange; and issue, and 6
(iii) cause the Trustee under the Indenture promptly to promptly authenticate and deliver Exchange Preferred Securities to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, Holder of Registrable Preferred Securities equal in principal amount to the principal amount Registrable Preferred Securities of the Securities surrendered by such Holder and so accepted for exchange. To the extent not prohibited by any law or applicable interpretation Interest on each of the staff Exchange Preferred Securities will accrue from the last interest payment date on which interest was paid on the Registrable Preferred Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Preferred Securities, from the date of original issue of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange OfferRegistrable Preferred Securities. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer Offer, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SECCommission, (ii) no action or proceeding shall have been instituted or threatened in any court by or before any governmental agency with respect to the Exchange Offer which, in the Trust's and the Company's judgment, might impair the ability of the Trust to proceed with the Exchange Offer, (iii) such Exchange Offer will not result in a "Tax Event" as defined in the Indenture, or (iv) there shall not have been adopted or enacted any law, statute, rule or regulation which, in the Trust's and the Company's judgment, would materially impair the ability of the Trust to proceed with the Exchange Offer. Each Holder of Registrable Preferred Securities (other than Private Exchange Securities, if issuedParticipating Broker-Dealers (as defined below)) who wishes to exchange such Registrable Preferred Securities (other than Private Exchange Securities, if issued) for Exchange Preferred Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations represent that such Holder (i) it is not an affiliate of the Issuer within Trust or the meaning of Rule 405 under the Securities ActCompany, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that (ii) any Exchange Preferred Securities to be received by it will be acquired in the ordinary course of business its business, and that at the time of the commencement of the Exchange Offer (iii) it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Preferred Securities, and (iv) it is not engaged in, and does not intend to engage in, a distribution (within the meaning of the Securities Act) of the Exchange Preferred Securities. The Issuer Trust shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchaser of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Purchaser shall have the right right, subject to applicable law and at their own expense, to contact such Holders and otherwise facilitate the tender of Registrable Preferred Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Bankunited Financial Corp)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (ia) The Issuers agree to file with the SEC within 90 days as soon as practicable after the Closing Time Date, but in no event later than the Filing Date, an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange (the "Exchange Offer") any and all of the Registrable Securities for a like aggregate principal amount of debt securities of the Company which are identical in all material respects to the Notes and guaranteed by the Guarantor with terms identical in all material respects to the Guarantee (the "Exchange Securities") (and which are entitled to the benefits of a trust indenture which is identical in all material respects to the Indenture (other than Private such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualification of such trust indenture under the TIA) and which has been qualified under the TIA), except that the Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) Securities shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain no restrictive legend thereon. The Issuers agree to use its their reasonable best efforts to cause such keep the Exchange Offer Registration Statement open for at least 20 business days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to be declared effective under Holders and to consummate the Securities Act by the SEC Exchange Offer on or prior to the 180th day 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 tender offer rules and regulations under the Exchange Act. If after such Exchange Registration Statement is initially declared effective by the Closing TimeSEC, (iii) use its reasonable best efforts the Exchange Offer or the issuance of the Exchange Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court such Exchange Registration Statement shall be deemed not to have such Registration Statement remain become effective until for purposes of this Agreement. Each Holder who participates in the closing Exchange Offer will be deemed to represent that any Exchange Securities received by it will be acquired in the ordinary course of its business, that at the time of the consummation of the Exchange Offer and (iv) commence such Holder will have no arrangement with any person to participate in the Exchange Offer and use its reasonable best efforts to issue distribution of the Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness violation of the Exchange Offer Registration Statementprovisions of the Securities Act, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 501(b) of Regulation D under the Securities Act and is not such Holder has full power and authority to exchange the Registrable Securities in exchange for the Exchange Securities. 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 that are Private Exchange Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuers shall have no further obligation to register Registrable Securities (other than Private Exchange Securities and other than Exchange Securities as to which clause (c)(1)(i) hereof applies) pursuant to Section 3 of this Agreement. No securities other than the Exchange Securities shall be included in the Exchange Registration Statement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Registration Statement one or more section(s) 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 (which are available to the Issuers) with respect to the potential "underwriter" status of any broker-dealer tendering Registrable Securities acquired directly from that is the Issuer or an affiliate of the Issuer for its own account, acquires beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Securities in the ordinary course of received by such Holder’s business and has no arrangements or understandings with any Person to participate broker-dealer in the Exchange Offer for (a "Participating Broker-Dealer"), whether such positions or policies have been publicly disseminated by the purpose Staff of “distributing” (within the meaning SEC or such positions or policies, in the reasonable judgment of the Initial Purchaser, 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 delivery requirements of the Securities Act) the Exchange Securities), with such Exchange Securitiesincluding all Participating Broker-Dealers, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and include a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in describing the case of the Initial Purchasers and means by which Participating Broker-Dealers as provided herein); and
(vi) otherwise comply may resell the Exchange Securities. The Issuers shall use their reasonable best efforts to keep the Exchange Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all respects with all applicable laws relating persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange OfferSecurities, provided that such period shall not exceed 180 days (or such longer period if extended pursuant to the last paragraph of Section 5) (the "Applicable Period"). If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds any Securities Notes acquired by it and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company upon the request of such the Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such the Initial Purchaser Purchaser, in exchange (the “"Private Exchange”") for the Securities held by such the Initial Purchaser, a like principal amount of debt securities of the Issuer Company that are identical (except that such securities shall bear appropriate transfer restrictions) in all material respects to the Exchange Securities (the “"Private Exchange Securities”). The ") (and which are issued pursuant to the same indenture as the Exchange Securities) except for the placement of a restrictive legend on such Private Exchange Securities. If possible, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon Interest on the Exchange Securities and Private Exchange Securities 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. Any indenture under which the Exchange Securities or the Private Exchange Securities will be issued shall provide that the holders of any of the Exchange Securities and the Private Exchange Securities will vote and consent together on all matters (to which such holders are entitled to vote or consent) as practicable after one class and that none of the close holders of the Exchange Securities and the Private Exchange Securities will have the right to vote or consent as a separate class on any matter (to which such holders are entitled to vote or consent).
(c) If (1) prior to the 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) in the opinion of counsel, the Exchange Securities would not, upon receipt, be tradeable by such Holders who are not affiliates of the Company without restriction under the Securities Act and without restrictions under applicable blue sky or state securities laws or (ii) in the opinion of counsel, the SEC is unlikely to permit the consummation of the Exchange Offer and/or (2) subsequent to the consummation of the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, holders of at least a new Exchange Security or Private Exchange Security, as the case may be, equal majority in principal amount to the aggregate principal amount of the Private Exchange Securities surrendered by such Holder and accepted for exchange. To so request with respect to the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete Private Exchange Securities and/or (3) the Exchange Offer as provided aboveis 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 comply with thereafter file an Initial Shelf Registration as set forth in Section 3 (which only in the applicable requirements circumstances contemplated by clause (2) of this sentence will relate solely to the Securities Act, the Private Exchange Act and other applicable laws in connection with the Exchange OfferSecurities) pursuant to Section 3. The Exchange Offer shall not be subject parties hereto agree that, following the delivery of a Shelf Notice to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder Holders of Registrable Securities (other than Private Exchange Securitiesonly in the circumstances contemplated by clauses (1) and/or (3) of the preceding sentence), if issued) who wishes the Issuers shall not have any further obligation to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in conduct the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of or the Issuer within the meaning of Rule 405 Private Exchange under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof2.
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost cost, (i) file cause to be filed with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its all commercially reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time, Target Registration Date and (iii) use its reasonable best efforts to have such Registration Statement remain effective until promptly offer the closing Exchange Notes in exchange for surrender of the Notes upon the effectiveness of the Exchange Offer Registration Statement, and (iv) commence consummate the Exchange Offer and use its reasonable best efforts on or prior to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeConsummation Date. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, unless the Exchange Offer would not be permitted by applicable law or applicable interpretation of the staff of the SEC, it being understood that the objective of such Exchange Offer is to enable each Holder eligible and electing to exchange Registrable Securities for a like principal amount of Exchange Notes (other than Private Exchange Securities, if issuedof the applicable series) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange SecuritiesNotes) (any Holder meeting all such requirements, hereinafter an “Eligible Holder”), with and to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail furnish to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documentsdocuments (together, the “Notice”);
(ii) use all commercially reasonable efforts to keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice Notice thereof is mailed furnished to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities withdraw, at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, any Notes tendered for exchange by sending to the institution specified in the notice Notice a telegram, telex, facsimile transmission or letter letter, received before aforesaid time, setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Securities Notes exchanged;
(v) notify each Holder by means of the Notice that any Security Note not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company shall:
(i) accept for exchange all Securities Notes or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Notes or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to the Depositary (or if, the Exchange Notes are in certificated form, each Holder), a new Exchange Security or Private Exchange Security, as Notes of the case may be, series and equal in principal amount to the respective series and principal amount of the Securities Notes surrendered by such Holder and accepted for exchangeHolder. Interest on each Exchange Note issued pursuant to the Exchange Offer will accrue from the last date on which interest was paid on the Note surrendered in exchange therefor or, if no interest has been paid on such Note, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its all commercially reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act. Except as set forth herein, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECSEC and that each Holder tendering Notes for exchange shall be an Eligible Holder. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, without limitation, representations that such Holder (i) it is not an affiliate of the Issuer within Company, (ii) the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee Each Holder hereby acknowledges and the Initial Purchasers, of the names agrees that any Participating Broker-Dealer and addresses of the Holders to whom any such Holder using the Exchange Offer is madeto participate in a distribution of the Exchange Notes: (1) could not under SEC policy as in effect on the date of this Agreement rely on the position of the SEC enunciated in ▇▇▇▇▇ & ▇▇▇▇ LLP (available February 7, 1997), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC’s letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters (including, without limitation, any no-action letter obtained based on the Initial Purchasers shall have representations in clause (i) above), and (2) must comply with the right to contact registration and prospectus delivery requirements of the Securities Act in connection with the secondary resale transaction and that such Holders a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Items 507 and otherwise facilitate 508, as applicable, of Regulation S-K, the tender SEC standard instructions for filing forms under the Securities Act, if the resales are of Registrable Securities Exchange Notes obtained by such Holder in exchange for Notes acquired by such Holder directly from the Exchange OfferCompany. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issuedpursuant to Section 2(b)(iii)) pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Oncor Electric Delivery Co LLC)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the (a) The Issuer shall, for the benefit of the Holders and at the Issuer’s cost (i) shall file with the SEC within 90 days after SEC, no later than the Closing Time an Filing Date with respect to the Exchange Offer Registration Statement, Registration Statements (each an "Exchange Offer Registration Statement") on appropriate registration forms with respect to registered offers (with respect to each of the Notes and the Preferred Stock, an "Exchange Offer" and together the "Exchange Offers") to exchange any and all of each of the Registrable Notes and Registrable Preferred Stock for a like aggregate principal amount of Notes (the "Exchange Notes") and aggregate liquidation preference of Preferred Stock (the "Exchange Preferred Stock," and together with the Exchange Notes, the "Exchange Securities"), as the case may be, of the Company that are identical in all material respects to each of the respective Securities, except that the Exchange Securities shall contain no restrictive legend thereon. 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 Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, has been qualified under the TIA. The Exchange Offer Registration Statement with respect to the Registrable Preferred Stock will also register any deemed offering of the Debentures by the issuer pursuant to the Exchange Offer; provided that if the Company exchanges the Reg- istrable Preferred Stock for the Exchange Debentures at any time prior to a Registration Statement with respect to the Preferred Stock being declared effective by the SEC, then the Issuer shall file with the SEC, no later than the Filing Date with respect to the Exchange Offer Registration Statement, a Registration Statement on an appropriate registration form under the Securities Act covering the with respect to a registered offer by the Issuer to the Holders to exchange any and all of the Registrable Securities (other than Private Exchange Securities, if issued) Debentures for a like aggregate principal amount of new Exchange SecuritiesDebentures (the "Series B Exchange Debentures"), (ii) except that the Series B Exchange Debentures shall contain no restrictive legend thereon and shall be entitled to the benefits of the Exchange Indenture. In the event the Issuer is so required to register and exchange the Exchange Debentures for Series B Exchange Debentures, the Issuer shall be subject to all covenants, warranties and obligations under this Agreement, with respect to the Series B Exchange Debentures, to which it would otherwise be subject with respect to the Registrable Notes, Exchange Notes and Private Exchange Notes, except that the Debentures will be governed by the Exchange Indenture. The Exchange Offers shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable law. The Issuer shall use its reasonable best efforts to (x) cause such each Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep each Exchange Offer open for at least 20 business days (or longer if required by applicable law) after the SEC date that notice of the Exchange Offer is mailed to Holders; and (z) consummate each Exchange Offer on or prior to the 180th 45th day following the date on which the applicable Exchange Offer Registration Statement is declared effective by the SEC. If, after an Exchange Offer Registration Statement is initially declared effective by the Closing TimeSEC, (iii) use its reasonable best efforts that Exchange Offer or the issuance of the Exchange Notes or Exchange Preferred Stock thereunder, as the case may be, is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, that Exchange Offer Registration Statement shall be deemed not to have such Registration Statement remain become effective until for purposes of this Agreement. Each Holder that participates in an Exchange Offer will be required, as a condition to its participation in the closing Exchange Offer, to represent to the Company in writing (which may be contained in the applicable letter of transmittal) that any Exchange Securities to be received by it will be acquired in the ordinary course of its business, that at the time of the consummation of the Exchange Offer and (iv) commence such Holder will have no arrangement or understanding with any Person to participate in the Exchange Offer and use its reasonable best efforts to issue distribution of the Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness violation of the Exchange Offer Registration Statementprovisions of the Securities Act, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (Company within the meaning of the Securities Act) Act and that such Holder reasonably believes such Holder is not acting on behalf of any Person that could not truthfully make the foregoing representations. Upon consummation of an Exchange Securities)Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with such respect to Registrable Securities that are Private Exchange Securities, from Exchange Securities as to which Section 2(c)(iv) is applicable and after their receiptExchange Securities held by Participating Broker-Dealers (as defined), having and the Issuer shall have no limitations further obligation to register Registrable Securities (other than Private Exchange Securities and other than in respect of any Exchange Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. Other than in connection with a deemed offering of the Debentures, or restrictions on their transfer a required exchange of Exchange Debentures for Series B Exchange Debentures, required by this Section 2, no securities other than the Exchange Securities shall be included in the Exchange Offer Registration Statement.
(b) The Issuer shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled "Plan of Distribution," reasonably acceptable to the Initial Purchaser, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of any Exchange Securities received by such broker-dealer in any Exchange Offer (a "Participating Broker-Dealer"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such "Plan of Distribution" section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Securities in compliance with the Securities Act. The Issuer shall use its reasonable best efforts to keep each Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Securities covered thereby; provided, however, that such period shall not exceed 180 days after consummation of the Exchange Offer (or such longer period if extended by the last paragraph of Section 5 herein)) (the "Applicable Period"). If, prior to consummation of the Exchange Offers, the Initial Purchaser holds any Securities acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, the Company upon the request of the Initial Purchaser shall simultaneously with the delivery of the Exchange Notes or Exchange Preferred Stock, as the case may be, in the Exchange Offer, issue and under state securities deliver to the Initial Purchaser, in exchange (each, a "Private Exchange") for such Notes or “blue sky” lawsPreferred Stock, as the case may be, held by the Initial Purchaser, a like principal amount or liquidation preference, as the case may be, of Notes (the "Private Exchange Notes") or Preferred Stock (the "Private Exchange Preferred Stock," and together with the Private Exchange Notes, the "Private Exchange Securities"), as the case may be, of the Company that are identical in all material respects to the Exchange Notes or Exchange Preferred Stock, as the case may be, except for the placement of a restrictive legend on such Private Exchange Securities. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes. Each of the Private Exchange Securities shall bear the same CUSIP number as the applicable Exchange Securities. Interest on the Exchange Notes and any 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 on such interest payment date or (B), if no interest has been paid on the Notes, from the Issue Date. Dividends on the Exchange Preferred Stock and any Private Exchange Preferred Stock will accumulate from (A) the later of (i) the last dividend payment date on which dividends were paid on the Preferred Stock surrendered in exchange therefor or, (ii) if the Preferred Stock is surrendered for exchange on a date in a period which includes the record date for a dividend payment to occur on or after the date of such exchange and as to which a dividend will be paid, the date of such dividend payment date or (B) if no dividends have been paid on the Preferred Stock, from the Issue Date. In connection with each of the Exchange OfferOffers, the Issuer shall:
(i1) mail 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;
(ii2) use their best efforts to keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days business days after the date that notice thereof of the Exchange Offer is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii3) utilize the services of the Trustee a depositary for the Exchange OfferOffer with an address in the Borough of Manhattan, The City of New York;
(iv4) permit Holders to withdraw tendered Securities Notes or Preferred Stock, as the case may be, at any time prior to the close of business, New York time, on the last Business Day of business day on which the applicable Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will Offer shall remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein)open; and
(vi5) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. Iflaws, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it rules and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securitiesregulations. As soon as practicable after the close of the applicable Exchange Offer and/or and the applicable Private Exchange, if any, the Issuer shall:
(1) accept for exchange all Registrable Notes or Registrable Preferred Stock, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof validly tendered and not validly withdrawn pursuant to the applicable Exchange OfferOffer and the applicable Private Exchange, if any;
(ii2) accept for exchange all Securities duly tendered pursuant deliver to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee Transfer Agent for cancellation all Securities Registrable Preferred Stock or portions thereof so accepted for exchange by the Issuer, and issuecause the Transfer Agent to countersign and deliver promptly to each Holder of Registrable Preferred Stock shares of Exchange Preferred Stock or Private Exchange Preferred Stock, as the case may be, equal in liquidation preference to the Registrable Preferred Stock of such Holder so accepted for exchange; and
(3) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange and cause the Trustee under the Indenture to promptly authenticate and deliver promptly to each HolderHolder Registrable Notes, a new Exchange Security Notes or Private Exchange SecurityNotes, as the case may be, equal in principal amount to the principal amount securities of the Securities surrendered by such Holder and so accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Each Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Private Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the 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 Issuer and (iii) all governmental approvals shall have been obtained, which approvals the Issuer deems necessary for the consummation of the Exchange Offer or Private Exchange. Each The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in such indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter. The Certificate of Designation shall provide that the Exchange Preferred Stock, the Private Exchange Preferred Stock and the Preferred Stock shall vote and consent together on all matters as one class and that none of the Exchange Preferred Stock, the Private Exchange Preferred Stock or the Preferred Stock will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuer is not permitted to effect the Exchange Offers, (ii) the Exchange Offers are not consummated within 180 days of the Issue Date, (iii) any holder of any Private Exchange Securities so requests in writing to the Company within 60 days after the consummation of the applicable Exchange Offer, or (iv) in the case of any Holder that participates in either of Registrable the Exchange Offers, such Holder does not receive the applicable Exchange Securities on the date of the exchange that may be sold without restriction under state and federal securities laws (other than Private Exchange Securities, if issued) who wishes due solely to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that status of such Holder is not as an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (Company within the meaning of the Securities Act), then in the case of each of clauses (i) to and including (iv) of this sentence, the Exchange Securities. The Issuer Company shall inform promptly deliver to the Initial Purchasers, after consultation with Holders and the Trustee and/or the Transfer Agent and Registrar, as applicable, written notice thereof (the Initial Purchasers, of the names "Shelf Notice") and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) file a Shelf Registration pursuant to Section 2(b) 3 hereof.
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (ia) The Issuers agree to file with the SEC within 90 days after no later than the Closing Time Filing Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange (the "Exchange Offer") any and all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issuedany) properly tendered prior thereto for a like aggregate principal amount of debt securities of the Company, guaranteed on a senior subordinated basis by the Guarantors, which are identical in all material respects to the Securities (the "Exchange Securities") (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 any requirements of the SEC to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA), except that the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issuedany) for Exchange Securities (assuming that such Holder is not shall have been registered pursuant to an affiliate of the Issuer within the meaning of Rule 405 effective Registration Statement under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has shall contain no arrangements or understandings with any Person to participate in the restrictive legend thereon. The Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer 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 state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer shall:
Act. The Issuers agree to use their respective best efforts to (ix) mail to each Holder a copy of the Prospectus forming part of cause the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (iiy) keep the Exchange Offer open for acceptance for a period of not less than at least 20 Business Days after the date notice thereof is mailed to the Holders business days (or longer if required by applicable law) (such period referred to herein as after the “Exchange Period”);
(iii) utilize the services date that notice of the Trustee for Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time Offer on or prior to the close of business195th day following the Issue Date. If after such Exchange Registration Statement is declared effective by the SEC, New York time, on the last Business Day of the Exchange Period, by sending to Offer or the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery issuance of the Exchange Securities in the Exchange Offerthereunder is prevented by any stop order, 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 injunction or other order or requirement of the Issuer that are identical (except that SEC or any other governmental agency or court, such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, Registration Statement shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts deemed not to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close become effective for purposes of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECthis Agreement. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities participates in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, represent that any Exchange Securities to be received by it will be acquired in the ordinary course of business and its business, that at the time of the commencement consummation of the Exchange Offer it has such Holder will have no arrangement or understanding with any Person to participate in the distribution (of the Exchange Securities in violation of the provisions of the Securities Act, and that such Holder is not an affiliate of any of the Issuers within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a)2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer Issuers shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issuedSecurities and other than in respect of any Exchange Securities as to which clause 2(c)(v) hereof applies) pursuant to Section 2(b3 hereof. No securities other than the Exchange Securities shall be included in the Exchange Registration Statement.
(b) hereof.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 under the Exchange Act)
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (ia) The Company agrees to file with the SEC within 90 days after Commission no later than the Closing Time Filing Date, an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange (the “Exchange Offer”) any and all of the Registrable Securities Notes (other than Private Exchange SecuritiesNotes, if issuedany) for a like aggregate principal amount of debt securities of the Company which are identical in all material respects to the Notes (the “Exchange SecuritiesNotes”) (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 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), 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 (iithe “Exchange Registration Statement”) and shall comply with all applicable tender offer rules and regulations under the Exchange Act. The Company agrees to use its reasonable best efforts to (x) cause such the Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to before the 180th day after the Closing Time, Effectiveness Date; (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iiy) keep the Exchange Offer open for acceptance for a period of not less than at least 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close date that notice of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
is first mailed to Holders; and (iz) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete consummate the Exchange Offer as provided aboveon or prior to the 30th day following the date on which the Exchange Registration Statement is declared effective (or if such day is not a Business Day, and shall comply with then the applicable requirements of next succeeding Business Day). If after such Exchange Registration Statement is initially declared effective by the Securities ActCommission, the Exchange Act and other applicable laws in connection with Offer or the issuance of the Exchange Offer. The Exchange Offer shall not be subject to Notes thereunder is interfered with by any conditionsstop order, injunction or other than that order or requirement of the Exchange Offer does not violate applicable law Commission or any applicable interpretation other governmental agency or court, such Exchange Registration Statement shall be deemed not to have become effective for purposes of the staff of the SECthis Agreement. Each Holder of Registrable Securities (other than Private Exchange Securities, if issuedAffiliates) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities participates in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, represent that any Exchange Securities to be Notes received by it will be acquired in the ordinary course of business and its business, that at the time of the commencement consummation of the Exchange Offer it has no Offer, such Holder does not and will not have any arrangement or understanding with any Person to participate in the distribution (within of the meaning Exchange Notes in violation of the Securities Act) , that such Holder is not an Affiliate, and any additional representations that in the written opinion of counsel to the Company are necessary under then-existing interpretations of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom Commission in order for the Exchange Offer is made, and the Initial Purchasers shall have the right Registration Statement to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offerbe declared effective. Upon consummation of the Exchange Offer in accordance with this Section 2(a)2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities Notes that are Private Exchange Securities, if issued, Notes and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register Registrable Securities Notes (other than Private Exchange Securities, if issuedNotes and other than in respect of any Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 2(b3 of this Agreement.
(b) hereof.The Company 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 Commission with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”). 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. The Company shall use its reasonable best efforts to keep the Exchange Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 180 days after the Exchange Offer has been completed or such longer period if extended pursuant to the last paragraph of Section 5 (the “Applicable Period”). If, upon consummation of the Exchange Offer, any Initial Purchaser holds any Notes acquired by it and having the status of an unsold allotment in the initial distribution of the Notes, the Company upon the request of such Initial Purchaser shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to such Initial Purchaser, in exchange (the “Private Exchange”) for the Notes held by such Initial Purchaser, a like principal amount of debt securities of the Company that are identical in all material respects to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the 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 to the extent possible. 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 shall:
Appears in 1 contract
Sources: Registration Rights Agreement (Texas New Mexico Power Co)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (i) file cause to be filed with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date that is 270 days after the Closing Time, Issue Date and (iii) use its reasonable best efforts to have such Registration Statement remain effective until promptly offer the closing Exchange Notes in exchange for surrender of the Notes upon the effectiveness of the Exchange Offer Registration Statement, and (iv) commence consummate the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 within 315 days after the Closing TimeIssue Date. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being understood that the objective of such Exchange Offer is to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Securities, if issued) for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange SecuritiesNotes) (any Holder meeting all such requirements, hereinafter an "Eligible Holder"), with and to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) deliver or mail to each Holder that is a registered owner of Registrable Securities a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documentsdocuments (together, the "Notice");
(ii) use its reasonable best efforts to keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice Notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities withdraw, at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, any Notes tendered for exchange by sending to the institution specified in the notice Notice, a telegram, telex, facsimile transmission or letter letter, received before aforesaid time, setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(v) notify each Holder by means of the Notice that any Security Note not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company shall:
(i) accept for exchange all Securities Notes or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Notes or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to the Depositary (or if, the Exchange Notes are in certificated form, each Holder), a new Exchange Security or Private Exchange Security, as the case may be, Notes equal in principal amount to the principal amount of the Securities Notes surrendered by such Holder and accepted for exchangeHolder. Interest on each Exchange Note issued pursuant to the Registered Exchange Offer will accrue from the last date on which interest was paid on the Note surrendered in exchange therefor or, if no interest has been paid on such Note, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECSEC and that each Holder tendering Notes for exchange shall be an Eligible Holder. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder (i) it is not an affiliate of the Issuer within Company, (ii) the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee Each Holder hereby acknowledges and the Initial Purchasers, of the names agrees that any Participating Broker-Dealer and addresses of the Holders to whom any such Holder using the Exchange Offer is madeto participate in a distribution of the Exchange Notes: (1) could not under SEC policy as in effect on the date of this Agreement rely on the position of the SEC enunciated in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC's letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters (including any no-action letter obtained based on the Initial Purchasers shall have representations in clause (i) above), and (2) must comply with the right to contact registration and prospectus delivery requirements of the Securities Act in connection with the secondary resale transaction and that such Holders a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Items 507 and otherwise facilitate 508, as applicable, of Regulation S-K, the tender SEC standard instructions for filing forms under the Securities Act, if the resales are of Registrable Securities Exchange Notes obtained by such Holder in exchange for Notes acquired by such Holder directly from the Exchange OfferCompany. Upon consummation of the an Exchange Offer in accordance with this Section 2(a), ): (i) any Eligible Holder that failed to participate in such Exchange Offer shall not be entitled to include any of its Registrable Securities in any Shelf Registration Statement pursuant to this Agreement; (ii) the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities Notes held by Participating Broker-Dealers, ; and (iii) the Issuer Company shall have no further obligation to register any Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofof this Agreement (other than pursuant to Sections 2(b)(iii) and (iv)).
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and Holders, at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds any Securities acquired by it and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such the Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such the Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such the Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as as, the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial PurchasersPurchaser, after consultation with the Trustee and the Initial PurchasersPurchaser, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers Purchaser shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To 1 Unless the extent not prohibited by any Exchange Offer would violate applicable law or any applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost cost, use its commercially reasonable efforts (iA) to file with the SEC SEC, within 90 180 days after the Closing Time an Settlement Date, the Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer with respect to the Holders Exchange Offer and the issuance and delivery to the Holders, in exchange all for each series of the Registrable Securities (other than Private Exchange Securities, if issued) for of a like principal amount of the corresponding series of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities Act within 240 days following the Settlement Date (unless the Exchange Offer Registration Statement is reviewed by the SEC on or prior to SEC, in which case within 300 days following the 180th day after the Closing TimeSettlement Date), (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence unless the Exchange Offer and use its reasonable best efforts would not be permitted by applicable law or SEC policy, to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in cause the Exchange Offer not later than 225 to be consummated within 270 days after following the Closing TimeSettlement Date (unless the Exchange Offer Registration Statement is reviewed by the SEC, in which case within 330 days following the Settlement Date). Upon The Exchange Securities will be issued under the Indenture or an indenture identical in all material respects to the Indenture. After the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (A) is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and (an “Affiliate”), (B) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer Company or an affiliate one of the Issuer its Affiliates for its own account, acquires (C) acquired the applicable series of Exchange Securities in the ordinary course of such Holder’s business and (D) at the time of the consummation of the Exchange Offer has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within distributing the meaning applicable series of the Securities Act) the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and without material restrictions under state the securities or “blue sky” lawslaws of a substantial portion of the several states of the United States. In connection with the Exchange Offer, the Issuer shallCompany will:
(iA) as promptly as practicable after the Exchange Offer Registration Statement has been declared effective by the SEC, mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iiB) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiiC) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. In lieu of filing the Shelf Registration Statement described in Section 2.2 (but not in lieu of the Shelf Registration Statement required in respect of Private Exchange Securities), the Issuers may effect an Exchange Offer pursuant to this Section 2.1. To effect an Exchange Offer, the Issuers shall, to the extent not prohibited by any applicable law or applicable SEC policy, interpretation of the Issuer shallstaff of the SEC, for the benefit of the Holders and Holders, at the Issuer’s cost Issuers’ cost, (iA) prepare and use their reasonable best efforts to file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under with respect to a proposed Exchange Offer and the Securities Act covering the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities) in the form of Second Lien Notes, if issued) for of a like principal amount of Exchange Securities described in clause (a) of the definition thereof, for Registerable Securities (other than Private Exchange Securities) in the form of Third Lien Notes, of a like principal amount of Exchange Securities described in clause (b) of the definition thereof and for Registerable Securities (other than Private Exchange Securities) in the form of Unsecured Notes, of a like principal amount of Exchange Securities described in clause (c) of the definition thereof by the later of (i) March 31, 2009 and (ii) 90 days after the date on which the Notes were first issued, (B) use its their commercially reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day later of (i) June 30, 2009 and (ii) 90 days after the Closing Timefiling of the Exchange Offer Registration Statement, (iiiC) use its reasonable their best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence use their best efforts to cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other be consummated not later than 45 days following the Private Exchange Securities, if issued) properly tendered prior thereto in effectiveness of the Exchange Offer not later than 225 days after Registration Statement; provided, however, that the Closing Timetime periods set forth in clause (A) above may be extended at the written request of a majority of the Joint Lead Arrangers delivered on or prior to the date of delivery of the Sale Notice (as defined in the Bridge Agreement) in which case the time period in clause (B) will be extended by an equivalent period. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Issuers shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate Affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and any Issuer, (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Issuers for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Issuers shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 days after the Closing TimeIssue Date, and (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until for not less than 30 calendar days (or longer if required by applicable law) after the closing date notice of the Exchange Offer and (iv) commence is mailed to the Holders. Notwithstanding the foregoing, in the event that the Company shall determine in good faith that there is a reasonable likelihood that, or a material uncertainty as to whether, consummation of the Exchange Offer would result in an adverse tax consequence to the Company (a "Tax Contingency"), the Trust and use its reasonable best efforts to issue Exchange Securities the Company may elect, in exchange for all Registrable Securities (other than lieu of the Private Exchange Securities, if issued) properly tendered prior thereto in commencement of the Exchange Offer not later than 225 days after Offer, to file and cause to be declared effective a Shelf Registration Statement covering resales of the Closing TimeSeries A Securities as provided in Section 2(b) hereof. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Debentures or a like liquidation amount of Exchange Capital Securities, if issued) for together with the Exchange Securities Guarantee, as applicable (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company and the Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Series A Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, Period by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Series A Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Series A Securities exchanged;; 8 7
(v) notify each Holder that any Series A Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interestinterest or accumulate distributions, as the case may be, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior If any Initial Purchaser determines upon advice of its outside counsel that it is not eligible to consummation of participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Securities constituting any Securities acquired by it and such Securities have the status portion of an unsold allotment in the initial distribution, as soon as practicable upon receipt by the Issuer shall, upon Company and the Trust of a written request of from such Initial Purchaser, simultaneously with the delivery of Company and the Exchange Securities in the Exchange OfferTrust, as applicable, shall issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Series A Securities held by such Initial Purchaser, a like liquidation amount of Capital Securities of the Trust, together with the Exchange Guarantee, or a like principal amount of debt securities the Series A Debentures of the Issuer Company, as applicable, that are identical (except that such securities shall may bear appropriate a customary legend with respect to restrictions on transfer restrictionspursuant to the Securities Act) to the Exchange Securities (the “"Private Exchange Securities”). The Private ") and which are issued pursuant to the Indenture, the Declaration or the Guarantee (which provides that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture or the Declaration, as applicable, and that the Exchange Securities, if anythe Private Exchange Securities and the Series A Securities will vote and consent together on all matters as one class and that neither the Exchange Securities, shall be issued under the IndenturePrivate Exchange Securities nor the Series A Securities will have the right to vote or consent as a separate class on any matter). The Private Exchange Securities shall be of the same series as, as the Exchange Securities and the Issuer shall use its reasonable best efforts Company and the Trust will seek to have cause the CUSIP Service Bureau to issue the same CUSIP Numbers for the Private Exchange Securities bear as for the same CUSIP number as Exchange Securities issued pursuant to the applicable Exchange SecuritiesOffer. As soon as practicable after the close of the Exchange Offer and/or and, if applicable, the Private Exchange, the Company and the Trust, as the case may berequires, the Issuer shall:
(i) accept for exchange all Series A Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the applicable Trustee for cancellation all Series A Securities or portions thereof so accepted for exchange by the Issuer, Company and issue, the Trust; and
(iii) principal amount of the Series A Debentures or equal in liquidation amount to the liquidation amount of the Series A Capital Securities (together with the guarantee thereof) as are surrendered by such Holder. Distributions on each Exchange Capital Security and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Private Exchange Security or and interest on each Exchange Debenture and Private Exchange SecuritySecurity issued pursuant to the Registered Exchange Offer and in the Private Exchange will accumulate or accrue, as the case may be, equal from the last date on which a distribution or interest was paid on the Series A Capital Security or the Series A Debenture surrendered in principal amount to exchange therefor or, if no distribution or interest has been paid on such Series A Capital Security or Series A Debenture, from the principal amount of the Securities surrendered by such Holder and accepted for exchangeIssue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company and the Trust shall use its reasonable their best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECSEC and that, with respect to any Series A Security tendered for exchange, a Tax Contingency shall not have occurred prior to the date such security is exchanged. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, in the case of any Holder of Series A Capital Securities and/or Series A Debentures, representations that such Holder (i) it is not an affiliate of the Issuer within Trust or the meaning of Rule 405 under Company, (ii) the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Capital Securities. The Issuer Company and the Trust shall inform the Initial Purchasers, after consultation with the Trustee and the Initial PurchasersTrustee, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer Company and the Trust shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (K N Capital Trust One)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyExcept as set forth in Section 2(b) below, the Issuer Company shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost cost, (i) file with the SEC within 90 90th calendar days after the Closing Time Date an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer relating to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 180 calendar days after the Closing TimeDate, and (iii) use its reasonable best efforts to have provided such Exchange Offer Registration Statement remain has been declared effective until under the closing of Securities Act by the Exchange Offer and (iv) SEC, commence the Exchange Offer and use its reasonable best efforts keep the Exchange Offer open for not less than 30 days, or longer if required by applicable law, after the date on which such Registration Statement was declared effective by the SEC (such period referred to herein as the “Exchange Period”) and at the termination thereof, issue Exchange Securities Bonds in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly Bonds tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness Each Holder of Registrable Bonds to be exchanged in the Exchange Offer Registration Statementshall be required, the Issuer shall promptly commence as a condition to participating in the Exchange Offer, to represent that it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities Bonds in the ordinary course of such Holder’s business and that it (i) is not an Affiliate of the Company, (ii) does not hold any Bonds to be exchanged for Exchange Bonds in the Exchange Offer that were acquired other than in the ordinary course of business, (iii) is not a broker-dealer tendering Registrable Bonds acquired directly from the Company, (iv) at the time of the Exchange Offer, has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” lawsBonds. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter letter. of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee Depositary for the Exchange OfferOffer with respect to Bonds represented by a global certificate;
(iviii) permit Holders to withdraw tendered Securities Registrable Bonds at any time prior to the close of business, New York City time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice to Holders, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Registrable Bonds delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Registrable Bonds exchanged;
(viv) notify each Holder that any Registrable Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, interest but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all material respects with all applicable laws and regulations relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Company shall:
(i) accept for exchange all Securities Registrable Bonds or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and letter of transmittal;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Registrable Bonds or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, Bonds equal in principal amount to the principal amount of the Securities Bonds as are surrendered by such Holder and accepted Holder. Interest on each Exchange Bond issued pursuant to the Exchange Offer will accrue from the last date on which interest was paid or duly provided for exchangeon the Bond surrendered in exchange therefor or, if no interest has been paid on such Bond, from the date of original issue of such Bond. To the extent not prohibited by any law judicial order, judgment, law, regulation or applicable interpretation of the staff of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, conditions other than the conditions referred to in Section 2(b)(i) and (ii) below and those conditions that the Exchange Offer does not violate are customary in similar exchange offers, except as may be required by applicable law or any applicable interpretation of the staff of the SEClaw. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) Bonds who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) Bonds for Exchange Securities Bonds in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, in the case of any Holder, representations that such Holder (i) it is not an affiliate Affiliate of the Issuer within the meaning of Rule 405 under the Securities ActCompany, or if (ii) it is such an affiliatenot a broker-dealer tendering Registrable Bonds acquired directly from the Company, it will comply with (iii) the registration Bonds being exchanged, and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Bonds to be received received, by it will be have been or are being acquired in the ordinary course of its business and that (iv) at the time of the commencement of the Exchange Offer Offer, it has no arrangement arrangements or understandings with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesBonds. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial PurchasersTrustee, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise in order to facilitate the tender of Registrable Securities Bonds in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities Bonds held by Initial Purchasers and Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register the Registrable Securities (Bonds held by any other than Private Exchange Securities, if issued) Holder pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Northern States Power Co)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the (a) The Issuer shall, for the benefit of the Holders and at the Issuer’s cost (i) file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer agrees to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause file with the SEC as soon as practicable after the Closing Date, but in no event later than the Filing Date, an offer to exchange (the “Exchange Offer”) any and all of the Transfer Restricted Securities for a like aggregate principal amount of debt securities of the Issuer which are substantially identical to the Securities (the “Exchange Securities”) (and which are entitled to the benefits of the Indenture or a trust indenture which is identical to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA), except that the Exchange Securities shall have been registered pursuant to an effective Registration Statement in compliance with the Securities Act. The Exchange Offer Registration Statement will be registered pursuant to be declared effective under the Securities Act by on the SEC on or prior appropriate form (the “Exchange Registration Statement”) and will comply with all applicable tender offer rules and regulations promulgated pursuant to the 180th day after Exchange Act and shall be duly registered or qualified pursuant to all applicable state securities or Blue Sky laws. The Exchange Offer shall not be subject to any condition, other than that the Closing Time, (iii) Exchange Offer does not violate any applicable law or interpretation of the Staff of the SEC. No securities shall be included in the Registration Statement covering the Exchange Offer other than the Transfer Restricted Securities and the Exchange Securities. The Issuer agrees to use its reasonable best efforts to have such (x) cause the Exchange Registration Statement remain to become effective until pursuant to the closing Securities Act on or before the Effectiveness Target Date; (y) keep the Exchange Offer open for not less than 20 Business Days (or such longer period required by applicable law) after the date that the notice of the Exchange Offer referred to below is sent to Holders; and (ivz) commence consummate the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than within 290 days after the Private Exchange Securities, if issued) properly tendered prior thereto Closing Date. Each Holder who participates in the Exchange Offer not later than 225 days after will be required to represent that any Exchange Securities received by it will be acquired in the Closing Time. Upon ordinary course of its business, that at the effectiveness time of the consummation of the Exchange Offer Registration Statement, such Holder will have no arrangement or understanding with any person to participate in the Issuer shall promptly commence distribution of the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming and that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under of the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, ). Each Holder that any Exchange Securities to be received by it is not a Participating Broker-Dealer will be acquired in the ordinary course of business required to represent that it is not engaged in, and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person does not intend to participate in engage in, the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation Each Holder that is a Participating Broker-Dealer will be required to acknowledge that it will deliver a prospectus as required by law in connection with the Trustee and the Initial Purchasers, any resale of the names and addresses of the Holders to whom the such Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange OfferSecurities. Upon consummation of the Exchange Offer in accordance with this Section 2(a)Agreement, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Transfer Restricted Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b3 of this Agreement.
(b) hereof.The Issuer shall include within the Prospectus contained in the Exchange Registration Statement a section entitled “Plan of Distribution,” reasonably acceptable to the 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 Securities received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”). Such “Plan of Distribution” section shall also allow the use of the Prospectus by all persons subject to the prospectus delivery requirements of the Securities Act, including all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Securities. The Issuer shall use its reasonable best efforts to keep the Exchange Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that such period shall not exceed 180 days after consummation of the Exchange Offer (or such longer period if extended pursuant to the last paragraph of Section 5) (the “Applicable Period”). In connection with the Exchange Offer, the Issuer shall:
Appears in 1 contract
Sources: Registration Rights Agreement (Host Hotels & Resorts, Inc.)
Exchange Offer. To Each of the extent not prohibited by any applicable law or applicable SEC policy, Company and the Issuer Guarantor shall, for the benefit of the Holders and Holders, at the IssuerCompany’s cost and the Guarantor's cost, (iA) use its reasonable best efforts to prepare and, as soon as practicable within 180 days following the Closing Date file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act by the SEC on or prior to the 180th day after within 270 days of the Closing TimeDate, (iiiC) use its reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and Offer, (ivD) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in cause the Exchange Offer to be completed not later than 225 300 days after following the Closing TimeDate, (E) provided that the Preferred Securities meet the minimum listing requirements of the New York Stock Exchange at the time an Exchange Offer Registration Statement is declared effective, use their reasonable best efforts to list the Preferred Securities on the New York Stock Exchange within 30 days following the Exchange Offer Registration Statement being declared effective, and (F) for a period of 90 days following the consummation of the exchange offer, to make available a prospectus meeting the requirements of the 1933 Act to any such participating broker-dealer for use in connection with any resale of any exchange notes acquired in the exchange offer. If the Company has not completed the Exchange Offer within 365 days of the Closing Date, then the Company will file as promptly as practicable a Shelf Registration Statement (as described in Section 2.2 hereof). The Exchange Securities will be issued under the Registrar and Transfer Agency Agreement. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Guarantor shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer within the meaning of “affiliate” (as such term is defined in Rule 405 under the Securities Act and ▇▇▇▇ ▇▇▇) of the Company or the Guarantor (b) is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer Company or an affiliate of the Issuer Guarantor for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and or under state securities or “blue sky” sky laws. Exchange Securities will be issued under the Exchange Offer as evidence of the same continuing rights and preferences under the Preferred Securities and the Guarantee. Under no circumstances will the surrender of the Preferred Securities and the issue of Exchange Securities constitute new securities or obligate the Company and the Guarantor to redeem the Preferred Securities. In connection with the Exchange Offer, the Issuer Company and the Guarantor shall:
(ia) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business5:00 PM, New York City time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Preferred Securities exchanged;
(ve) notify each Holder that any Security Registrable Securities not tendered will remain outstanding and continue to accrue interestoutstanding, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds any Preferred Securities acquired by it and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company and the Guarantor upon the request of such the Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such the Initial Purchaser in exchange (the “Private Exchange”) for the Preferred Securities held by such the Initial Purchaser, a like principal amount number of debt securities Preferred Securities of the Issuer Company, unconditionally guaranteed by the Guarantor as to payment of distributions (“remuneración”), on the Preferred Securities, as well as payment of the redemption price for the Preferred Securities upon any redemption thereof and the liquidation distribution of the Preferred Securities upon the winding-up or liquidation of the Company, that are identical (except that such securities Preferred Securities and Guarantee shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureRegistrar and Transfer Agency Agreement or (ii) a registrar and transfer agency agreement identical in all material respects to the Registrar and Transfer Agency Agreement, and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Registrar and Transfer Agency Agreement but that the Private Exchange Securities shall be subject to such transfer restrictions. The Registrar and Transfer Agency Agreement or such registrar and transfer agency agreement shall provide that the Exchange Securities, the Private Exchange Securities and the Preferred Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, the Private Exchange Securities or the Preferred Securities will have the right to vote or consent as a separate class on any matter. The Private Exchange Securities shall be of the same series as, and the Issuer Company shall use its reasonable best efforts to have ensure that the Private Exchange Securities bear the same CUSIP number as as, the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company and the Guarantor shall:
(i) accept for exchange all Registrable Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Registrable Securities duly properly tendered and not validly withdrawn pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, to the Trustee Registrar and Transfer Agent for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture Registrar and Transfer Agent promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, to each Holder of Registrable Securities so accepted for exchange in number equal in principal amount to the principal amount number of the Registrable Securities surrendered by of such Holder and so accepted for exchange. To Distributions on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which distributions were paid on the Registrable Securities surrendered in exchange therefor or, if no distributions have been paid on the Registrable Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the valid tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act▇▇▇▇ ▇▇▇) of the Exchange SecuritiesSecurities and shall have made such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form F-4 or other appropriate form under the 1933 Act available and (iv) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offer or the Private Exchange which, in the judgment of the Company and the Guarantor, would reasonably be expected to impair the ability of the Company or the Guarantor to proceed with the Exchange Offer or the Private Exchange. The Issuer shall Company and the Guarantor shall, to the extent such information is available to the Company or the Guarantor, inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchaser of the names and addresses of the Holders to whom the Exchange Offer is made, subject to the right of any Holder to object to the disclosure of such information with respect to such Holder, and the Initial Purchasers Purchaser shall have the right right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a)Agreement, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, Company and the Issuer Guarantor shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof2.2 of this Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Banco Santander, S.A.)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, use its best efforts to (i) file cause to be filed with the SEC within 90 60 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 120 days after the Closing Time, (iii) use its reasonable best efforts to have keep such Exchange Offer Registration Statement remain effective until the closing consummation of the Exchange Offer and (iv) commence cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 150 days after the Closing Time. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii1) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii1) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior If any Purchaser determines upon advice of its outside counsel that it is not eligible to consummation of participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Securities constituting any Securities acquired by it and such Securities have the status portion of an unsold allotment in the initial distribution, as soon as practicable upon receipt by the Issuer shall, upon the Company of a written request from such Purchaser and an opinion of outside counsel for such Initial Purchaser, simultaneously reasonably satisfactory in form and substance to outside counsel of the Company, to the effect that such exchange does not require compliance with the delivery of registration requirements under the Exchange Securities in Act, the Exchange Offer, Company shall issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “"Private Exchange Securities”). The Private ") and which are issued pursuant to the Indenture (which will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that the Exchange Securities, if anythe Private Exchange Securities and the Securities will vote and consent together on all matters as one class and that neither the Exchange Securities, shall be issued under the IndenturePrivate Exchange Securities nor the Securities will have the right to vote or consent as a separate class on any matter). The Private Exchange Securities shall be of the same series as, as the Exchange Securities and the Issuer shall use its reasonable best efforts Company will seek to have cause the CUSIP Service Bureau to issue the same CUSIP Number for the Private Exchange Securities bear as for the same CUSIP number as Exchange Securities issued pursuant to the applicable Exchange SecuritiesOffer. As soon as practicable after the close of the Exchange Offer and/or or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder Holder. Interest on each Exchange Security and accepted for exchangePrivate Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Securities surrendered in exchange therefor or, if no interest has been paid on the Securities, from the date of original issue of the Securities. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer and each Purchaser who holds and wishes to exchange Registrable Securities for Exchange Securities in the Private Exchange will be required to make certain customary representations in connection therewith, including including, in the case of any Holder, representations that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities ActAct or, or if it is such an affiliate, it that such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Freedom Chemical Co)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer Company and the Bank shall, for the benefit of the Holders and Holders, at the Issuer’s Company's cost (i) use their best efforts to file with the SEC within 90 150 days after the Closing Time Issue Date an Exchange Offer Registration Statement on an appropriate form or forms under the Securities Act covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount number of Exchange Securities, (ii) use its reasonable their best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day within 180 days after the Closing TimeIssue Date, (iii) use its reasonable their best efforts to have such Registration Statement remain effective until for no fewer than 30 days (or longer if required by applicable law) after the closing date notice of the Exchange Offer has been mailed to the Holders and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 45 days after the Closing Timedate on which the Exchange Offer Registration Statement was declared effective by the SEC. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company and the Bank shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own accountaccount as a result of market making activities or other trading activities, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and without material restrictions under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company and the Bank shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer, if permitted by the Depositary;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount number of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s 's election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interestreceive dividends, if, when and as declared by the Company's Board of Directors, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers Purchaser and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as Company and the case may be, the Issuer Bank shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iiiii) deliver, or cause to be delivered, to the Trustee Exchange Agent for cancellation all Securities or portions thereof so accepted for exchange by the Issuerexchange, and issue, and cause the Trustee Transfer Agent under the Indenture Transfer Agent Agreement to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount number to the principal amount number of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, held by the Initial Purchaser and Exchange Securities held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) and the Liquidated Damages shall no longer apply pursuant to Section 2(b) hereof.
Appears in 1 contract
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit (a) Each of the Holders and at the Issuer’s cost (i) Issuers agrees to file with the SEC within 90 days after no later than the Closing Time Filing Date, an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer to the Holders to exchange (the "EXCHANGE OFFER") any and all of the Registrable Securities Notes (other than Private Exchange SecuritiesNotes, if issuedany) for a like aggregate principal amount of debt securities of the Company, guaranteed by the Subsidiary Guarantors, which are identical in all material respects to the Notes (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 any requirements of the SEC to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA), except that the Exchange Securities, 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 (iithe "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 reasonable best efforts to (x) cause such the Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to before the 180th day after the Closing Time, Effectiveness Date; (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iiy) 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 at least 30 calendar days (or longer if required by applicable law) (such period referred to herein as after the “Exchange Period”);
(iii) utilize the services date that notice of the Trustee for Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time Offer on or prior to the close of business45th day following the date on which the Exchange Registration Statement is declared effective. If after such Exchange Registration Statement is initially declared effective by the SEC, New York time, on the last Business Day Exchange Offer or the issuance of the Exchange PeriodNotes thereunder is interfered with by any stop order, by sending injunction or other order or requirement of the SEC or any other governmental agency or court, such Exchange Registration Statement shall be deemed not to the institution specified have become effective for purposes of this Agreement. Each Holder who participates in the notice a telegramExchange Offer will be required to represent that any Exchange Notes received by it will be acquired in the ordinary course of its business, telexthat at the time of the consummation of the Exchange Offer such Holder will have no arrangement or understanding with any Person to participate in the distribution of the Exchange Notes in violation of the provisions of the Securities Act, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election not an affiliate of any of the Issuers within the meaning of the Securities Act. 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 and Exchange Notes held by Participating Broker-Dealers, and the Issuers shall have such Securities exchanged;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 of this Agreement.
(vb) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except The Issuers shall include within the Prospectus contained in the case Exchange Registration Statement a section entitled "Plan of Distribution," reasonably acceptable to the Initial Purchaser, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a "PARTICIPATING BROKER-DEALER"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the judgment of the Initial Purchasers Purchaser, represent the prevailing views of the staff of the SEC. Such "Plan of Distribution" section shall also allow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent so permitted, all Participating Broker-Dealers, and include a statement describing the manner in which Participating Broker-Dealers as provided herein); and
(vi) otherwise comply may resell the Exchange Notes. Each of the Issuers shall use its best efforts to keep the Exchange Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all respects with all applicable laws relating Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such Persons must comply with such requirements in order to resell the Exchange OfferNotes, but in no event longer than 180 days (the "APPLICABLE PERIOD"). If, prior to upon consummation of the Exchange Offer, an the Initial Purchaser holds any Securities Notes acquired by it and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company upon the request of such the Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities Notes in the Exchange Offer, issue and deliver to such the Initial Purchaser Purchaser, in exchange (the “Private Exchange”"PRIVATE EXCHANGE") for the Securities Notes held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company, guaranteed by the Subsidiary Guarantors, that are identical (except that such securities shall bear appropriate transfer restrictions) in all material respects to the Exchange Notes except for the existence of restrictions on transfer thereof under the Securities Act and securities laws of the several states of the U.S. (the “Private "PRIVATE EXCHANGE NOTES") (and which are issued pursuant to the same indenture as the Exchange Securities”Notes); PROVIDED, HOWEVER, the Issuers shall not be required to effect such exchange if, in the written opinion of counsel for the Issuers (a copy of which shall be delivered to the Initial Purchaser and any Holder affected thereby), such exchange cannot be effected without registration under the Securities Act. The Private Exchange Securities, if any, Notes shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofNotes.
Appears in 1 contract
Sources: Registration Rights Agreement (Biltmore South Corp)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (i) unless the Exchange Offer would not be permitted by applicable law or SEC policy, file with the SEC within 90 60 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities Transfer Restricted Notes (other than Private Exchange Securities, if issuedNotes (as defined below)) for a like principal amount of Exchange SecuritiesNotes, (ii) unless the Exchange Offer would not be permitted by applicable law or SEC policy, use its reasonable best efforts to cause have such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day not later than 150 days after the Closing TimeTime (the "Target Effectiveness Date"), (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) unless the Exchange Offer would not be permitted by applicable law or SEC policy, commence the Exchange Offer and use its reasonable best efforts to issue issue, on or prior to the 30th Business Day after the date on which the Exchange Securities Offer Registration Statement was declared effective by the SEC (the "Target Consummation Date"), Exchange Notes in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly Notes tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities Transfer Restricted Notes acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with Notes) and to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. 8 In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities Notes at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Offer the Initial Purchaser holds Purchasers hold any Securities Notes acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, Company upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities Notes in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities Notes held by such Initial Purchaser, a like principal amount of debt securities of the Issuer Company that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities Notes (the “"Private Exchange Securities”Notes"). The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical to all material respects to the Indenture and that, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter. The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities Notes shall be of the same series as, as and the Issuer Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities Notes bear the same CUSIP number as the Exchange Notes. The Company shall not have any liability under this Agreement solely as a result of such Private Exchange Notes not bearing the same CUSIP number as the Exchange Notes. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency that might materially impair the ability of the Company to proceed with the Exchange SecuritiesOffer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company deems necessary for the consummation of the Exchange Offer or Private Exchange. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Securities Transfer Restricted Notes or portions thereof properly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal that is an exhibit thereto;
(ii) accept for exchange all Securities duly Notes properly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Transfer Restricted Notes or portions thereof so accepted for exchange by the IssuerCompany, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security Note or Private Exchange SecurityNote, as the case may be, equal in principal amount to the principal amount of the Securities Transfer Restricted Notes surrendered by such Holder and accepted for exchange. 10 To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, above and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities Transfer Restricted Notes in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities Transfer Restricted Notes that are Private Exchange Securities, if issued, Notes and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register Registrable Securities Transfer Restricted Notes (other than Private Exchange Securities, if issuedNotes) pursuant to Section 2(b) hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Golden Sky Systems Inc)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policyinterpretation of the staff of the SEC, the Issuer Company and the Trust shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's expense, use its best efforts to (i) file with the SEC within 90 150 days after the Closing Time Issue Date an Exchange Ex- change Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer relating to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange SecuritiesOffer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day within 180 days after the Closing TimeIssue Date, and (iii) use its reasonable best efforts to have keep such Registration Exchange Offer Regis- tration Statement remain effective until for not less than 30 days (or longer if required by applicable law) after the closing date notice of the Exchange Offer and (iv) commence has been mailed to the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeHolders. Upon the effectiveness effec- tiveness of the Exchange Offer Registration Statement, the Issuer Company and the Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private for a like principal amount of Exchange Debentures or a like liquidation amount of Exchange Capital Securities, if issued) for together with the Exchange Securities Guarantee, as applicable (assuming that such Holder (i) is not an affiliate of the Issuer Company or the Trust within the meaning of Rule 405 under the Securities Act and is not a broker-broker- dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, account and (ii) acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate partici- ▇▇▇▇ in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” lawssky laws (other than requiring minimum transfers in blocks having an aggregate principal or liquidation amount, as the case may be, of $100,000). In connection with the Exchange Offer, the Issuer Company and the Trust shall:
(i) mail or cause to be mailed to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration StatementState- ment, together with an appropriate letter of transmittal and related documents;
; (ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
; (iii) utilize the services of the Trustee Depositary for the Exchange Ex- change Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution institu- tion specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interestinterest or accumulate distributions, as the case may be, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior If any Initial Purchaser determines upon advice of its outside counsel that it is not eligible to consummation of participate in the Exchange Offer, an Initial Purchaser holds Offer with respect to the exchange of Securities consti- tuting any Securities acquired by it and such Securities have the status portion of an unsold allotment in the initial distributiondistri- bution, as soon as practicable upon receipt by the Issuer shall, upon Company and the Trust of a written request of from such Initial Purchaser, simultaneously with the delivery of Company and the Exchange Securities in the Exchange OfferTrust, as applicable, shall issue and deliver to such Initial Purchaser in exchange (the “"Private Exchange”") for the Securities held by such Initial Purchaser, a like liquidation amount of Capital Securities of the Trust, together with the Exchange Guarantee, or a like principal amount of debt securities the Subordinat- ed Debentures of the Issuer Company, as applicable, that are identical (except that such securities shall may bear appropriate a customary legend with respect to restrictions on transfer restrictionspursuant to the Securities Act) to the Exchange Securities (the “"Private Exchange Securities”). The Private Securi- ties") and which are issued pursuant to the Indenture, the Declaration or the Guarantee (which provides that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture or the Declaration, as applicable, (other than to require minimum transfers thereof to be in blocks of $100,000 liquidation amount or principal amount) and that the Exchange Securities, if anythe Private Exchange Securities and the Securities will vote and consent together on all matters as one class and that neither the Exchange Securities, shall be issued under the IndenturePrivate Exchange Securities nor the Securities will have the right to vote or consent as a separate class on any matter). The Private Exchange Securities shall be of the same series asas the Exchange Securities, and the Issuer shall use its reasonable best efforts Company and the Trust will seek to have cause the CUSIP Service Bureau to issue the same CUSIP Numbers for the Private Exchange Securities bear as for the same CUSIP number as Exchange Securities issued pursuant to the applicable Exchange SecuritiesOffer. As soon as practicable after the close of the Exchange Offer and/or and, if applicable, the Private Exchange, the Company and the Trust, as the case may berequires, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the applicable Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and Company; and
(iii) issue, and cause the applicable Trustee under the Indenture Indenture, the Declaration or the Guarantee, as applicable, to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may beapplicable, equal in principal amount to the principal amount of the Subordinated Debentures or equal in liquidation amount to the liquidation amount of the Capital Securities (together with the guarantee thereof) as are surrendered by such Holder Holder. Distributions on each Exchange Capital Security and accepted for exchangeinterest on each Exchange Debenture and Private Exchange Security issued pursuant to the Exchange Offer and in the Private Exchange will accrue from the last date on which a distribution or inter- est was paid on the Capital Security or the Subordinated Deben- ture surrendered in exchange therefor or, if no distribution or interest has been paid on such Capital Security or Subordinated Debenture, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company and the Trust shall use its reasonable their best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including including, in the case of any Holder of Capital Securities, representations that such Holder (i) it is not an affiliate affili- ate of the Issuer within Trust or the meaning of Rule 405 under Company, (ii) the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be were acquired in the ordinary course of its business and that (iii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement with any Person person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Capital Securities. The Issuer Company and the Trust shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasersapplicable Trustees, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, Securities and Exchange Securities held by Participating Broker-Dealers, and the Issuer Company and the Trust shall have no further obligation to register regis- ter the Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereofof this Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Sovereign Bancorp Inc)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost (i) At any time following the completion of a 144A Minimum Resale, but not more than once, upon the written notice of CUSA (the "Exchange Offer Demand Notice"), the Company shall file a registration statement with the SEC within 90 days after no later than the Closing Time an Exchange Offer Filing Date, pursuant to which the Company shall offer to all Holders to exchange (the "Exchange Offer") any and all of the Convertible Securities for new securities (the "Exchange Securities") identical in all material respects to the Convertible Securities, except that the Exchange Securities shall have been registered pursuant to an effective Registration Statement under the Securities Act, shall contain no restrictive legend thereon, except as otherwise specifically required by the other provisions of this Agreement, and shall contain no provision for Liquidated Damages Amounts; provided that the Company shall not be required to extend the Exchange Offer (which shall not be deemed to include the private exchange referred to in clause (5) below) to CUSA unless CUSA delivers to the Company, at least five Business Days prior to the effectiveness of the Exchange Registration Statement, an opinion of outside counsel, reasonably acceptable to the Company, to the effect that CUSA may participate in the Exchange Offer and receive Exchange Securities on an appropriate form the date of the exchange that may be sold without restriction under federal securities laws. The Company shall not be obligated to effect more than one Exchange Offer. The Exchange Offer shall be registered under the Securities Act covering on the appropriate form (the "Exchange Registration Statement") and shall comply with all applicable tender offer by rules and regulations under the Issuer Exchange Act. The Company agrees to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its reasonable best efforts to cause such (1) file the initial Exchange Registration Statement with the SEC on or prior to the Exchange Offer Filing Date; (2) cause the Exchange Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day after the Closing Time, (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of before the Exchange Offer and Effectiveness Deadline Date; (iv) commence the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer not later than 225 days after the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) the Exchange Securities), with such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” laws. In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii3) keep the Exchange Offer open for acceptance for a period of not less than at least 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close date that notice of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant is first mailed to the Exchange OfferHolders;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, equal in principal amount to the principal amount of the Securities surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Sources: Exchange and Registration Rights Agreement (Dynegy Inc /Il/)
Exchange Offer. To (a) The Trust and the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders and at the Issuer’s cost Company shall (i) prepare and, not later than 60 days following the Closing Time, file with the SEC within 90 days after the Closing Time Commission an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering with respect to a proposed offer (the offer by the Issuer "Exchange Offer") to the Holders to issue and deliver to such Holders, in exchange all of for the Registrable Securities (other than Private Exchange Preferred Securities, if issued) for a like principal amount of Exchange Preferred Securities, (ii) use its reasonable their best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to the 180th day within 120 days after the Closing Time, (iii) use its reasonable their best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer Offer, subject to its use by Participating Broker-Dealers (as defined below) as contemplated in Section 3(f) below, and (iv) commence use their best efforts to cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto in the Exchange Offer be consummated not later than 225 180 days after following the Closing Time. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Preferred Securities (other than Private Exchange Securities, if issued) for Exchange Preferred Securities (assuming that such Holder is not an affiliate of the Issuer Trust or the Company, within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer for its own accountAct, acquires the Exchange Preferred Securities in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing the Exchange Preferred Securities and, if such Holder is not a broker-dealer, such Holder is not engaged in, and does not intend to engage in, a distribution (within the meaning of the Securities Act) the Exchange Securities), with of such Exchange Preferred Securities, ) and to trade such Exchange Preferred Securities from and after their receipt, having no each such Holder's receipt of the Exchange Preferred Securities without any limitations or restrictions on their transfer under the Securities Act and without material restrictions under state the securities or “blue sky” laws. laws of a substantial proportion of the several states of the United States.
(b) In connection with the Exchange Offer, the Issuer Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days 30 calendar days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize use the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Registrable Preferred Securities at any time prior to the close of business, New York time, on the last Business Day of business day on which the Exchange PeriodOffer shall remain open, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Preferred Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Preferred Securities exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange .
(the “Private Exchange”c) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may beOffer, the Issuer Trust shall:
(i) accept for exchange all Registrable Preferred Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which is an exhibit thereto;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Registrable Preferred Securities or portions thereof so accepted for exchange by the Issuer, exchange; and issue, and 6
(iii) cause the Trustee under the Indenture promptly to promptly authenticate and deliver Exchange Preferred Securities to each Holder, a new Exchange Security or Private Exchange Security, as the case may be, Holder of Registrable Preferred Securities equal in principal amount to the principal amount Registrable Preferred Securities of the Securities surrendered by such Holder and so accepted for exchange. To the extent not prohibited by any law or applicable interpretation Interest on each of the staff Exchange Preferred Securities will accrue from the last interest payment date on which interest was paid on the Registrable Preferred Securities surrendered in exchange therefor or, if no interest has been paid on the Registrable Preferred Securities, from the date of original issue of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange OfferRegistrable Preferred Securities. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer Offer, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SECCommission, (ii) no action or proceeding shall have been instituted or threatened in any court by or before any governmental agency with respect to the Exchange Offer which, in the Trust's and the Company's judgment, might impair the ability of the Trust to proceed with the Exchange Offer, (iii) such Exchange Offer will not result in a "Tax Event" as defined in the Indenture, or (iv) there shall not have been adopted or enacted any law, statute, rule or regulation which, in the Trust's and the Company's judgment, would materially impair the ability of the Trust to proceed with the Exchange Offer. Each Holder of Registrable Preferred Securities (other than Private Exchange Securities, if issuedParticipating Broker-Dealers (as defined below)) who wishes to exchange such Registrable Preferred Securities (other than Private Exchange Securities, if issued) for Exchange Preferred Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations represent that such Holder (i) it is not an affiliate of the Issuer within Trust or the meaning of Rule 405 under the Securities ActCompany, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that (ii) any Exchange Preferred Securities to be received by it will be acquired in the ordinary course of business its business, and that at the time of the commencement of the Exchange Offer (iii) it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Preferred Securities, and (iv) it is not engaged in, and does not intend to engage in, a distribution (within the meaning of the Securities Act) of the Exchange Preferred Securities. The Issuer Trust shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right right, subject to applicable law and at their own expense, to contact such Holders and otherwise facilitate the tender of Registrable Preferred Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Bankunited Financial Corp)
Exchange Offer. To (a) The Company and the extent not prohibited by any applicable law or applicable SEC policy, the Issuer shall, for the benefit of the Holders Guarantors jointly and at the Issuer’s cost (i) severally agree to use their reasonable best efforts to file with the SEC within 90 days as soon as practicable after the Closing Time Closing, but in no event later than the Filing Date, documents pertaining to an offer to exchange (the "Exchange Offer Registration Statement on Offer") any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company which are identical in all material respects to the Notes (the "Exchange Notes") (and which are entitled to the benefits of the Indenture or a trust indenture which is substantially identical to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA), except that the Exchange Notes shall have been registered pursuant to an appropriate form effective registration statement under the Securities Act covering and will not contain terms with respect to transfer restrictions. The Exchange Offer will be registered under the Securities Act on the appropriate form (the "Exchange Registration Statement"), and the Exchange Offer will comply with all applicable tender offer by rules and regulations under the Issuer Exchange Act. The Company and the Guarantors jointly and severally agree to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities, if issued) for a like principal amount of Exchange Securities, (ii) use its their reasonable best efforts to (x) cause such the Exchange Offer Registration Statement to be declared become effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the SEC date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer with respect to all Notes validly tendered on or prior to the 180th 60th day after following the Closing Time, (iii) use its reasonable best efforts to have such date the Exchange Registration Statement remain is declared effective until (in any event on or prior to the closing Consummation Date) (or, in the event of any extension of the Exchange Offer and (iv) commence required by applicable law, the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly tendered prior thereto earliest day following any such extension). Each Holder who participates in the Exchange Offer not later than 225 days after will be required to represent that any Exchange Notes received by it will be acquired in the Closing Time. Upon ordinary course of its business, that at the effectiveness time of the consummation of the Exchange Offer Registration Statement, such Holder will have no arrangement or understanding with any Person to participate in the Issuer shall promptly commence distribution of the Exchange OfferNotes in violation of the provisions of the Securities Act, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder is not an affiliate of the Issuer Company or the Guarantors within the meaning of Rule 405 promulgated under the Securities Act or if it is such an affiliate, that it will comply with the registration and prospectus delivery requirements of the Securities Act, to the extent applicable, and that is not acting on behalf of any Person who could not truthfully make the foregoing representations. 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 and Exchange Notes held by Participating Broker-Dealers, and the Company and the Guarantors shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes held by Participating Broker-Dealers) pursuant to Section 3 of this Agreement.
(b) The Company and the Gurantors shall include within the Prospectus contained in the Exchange Registration Statement a section entitled "Plan of Distribution," reasonably acceptable to the Initial Purchaser, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential "underwriter" status of any broker-dealer tendering Registrable Securities acquired directly from that is the Issuer or an affiliate of the Issuer for its own account, acquires beneficial owner (as defined in Rule 13d-3 promulgated under the Exchange Securities in the ordinary course Act) of Exchange Notes received by such Holder’s business and has no arrangements or understandings with any Person to participate broker-dealer in the Exchange Offer for (a "Participating Broker-Dealer"), whether such positions or policies have been publicly disseminated by the purpose staff of “distributing” (within the meaning SEC or such positions or policies, in the reasonable judgment of the Initial Purchaser, represent the prevailing views of the staff of the SEC. 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 all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Securities), with Notes. The Company and the Guarantors shall use their reasonable best efforts to keep the Exchange Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Exchange Securities, from and after their receipt, having no limitations or restrictions on their transfer under Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such Persons must comply with such requirements in order to resell the Exchange Notes, provided that such period shall not exceed 180 days (or such longer period if extended pursuant to the last paragraph of Section 5) (the "Applicable Period"). Notwithstanding the foregoing, the Company and under state the Guarantors shall have no obligation to keep the Exchange Registration Statement effective or to amend and supplement the Prospectus contained therein in the event that the Company has not received written notice within 30 days following completion of the Exchange Offer that a Participating Broker-Dealer received Exchange Notes in the Exchange Offer. If, 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 as an unsold allotment in the initial distribution, the Company and the Guarantors upon the request of the Initial Purchaser shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchaser, in exchange (the "Private Exchange") for the Notes held by the Initial Purchaser, a like principal amount of debt securities or “blue sky” lawsof the Company that are identical in all material respects to the Exchange Notes (the "Private Exchange Notes") (and which are issued pursuant to the same indenture as the Exchange Notes) except for the placement of a restrictive legend on the Private Exchange Notes. If possible, 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, the Issuer Company and the Guarantors shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iii) utilize the services of the Trustee a depositary for the Exchange Offer;Offer with an address in the Borough of Manhattan, The City of New York; and
(iviii) permit Holders to withdraw tendered Securities Notes at any time prior to the close of business, New York City time, on the last Business Day of business day on which the Exchange Period, by sending to the institution specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will Offer shall remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities shall be of the same series as, and the Issuer shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securitiesopen. As soon as practicable after the close of the Exchange Offer and/or or the Private Exchange, as the case may be, the Issuer Company and the Guarantors shall:: 10 -8-
(i) accept for exchange all Securities or portions thereof Notes tendered and not validly withdrawn pursuant to the Exchange OfferOffer or the Private Exchange;
(ii) accept for exchange all Securities duly tendered pursuant deliver to the Private ExchangeTrustee for cancellation all Notes so accepted for exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver promptly to each HolderHolder of Notes, a new Exchange Security Notes or Private Exchange SecurityNotes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Notes and the Private Exchange Notes may be issued under (i) the Indenture or (ii) an indenture substantially identical to the Indenture, which in either event will provide that (1) the Exchange Notes 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 will have the right to vote and give consents together on all matters presented to such holders for votes or consents as one class and that neither the Exchange Notes, the Private Exchange Notes nor the Notes will have the right to vote or consent as a separate class on any matter.
(c) If (1) prior to the consummation of the Exchange Offer, the Company, the Guarantors or Holders of at least a majority in aggregate principal amount of the Securities surrendered Registrable Notes reasonably determine in good faith that (i) the Exchange Notes would not, upon receipt, be freely transferable by such Holder and accepted for exchange. To the extent Holders which are not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution affiliates (within the meaning of the Securities Act) of the Exchange Securities. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee Company and the Initial PurchasersGuarantors without restriction under the Securities Act and without restrictions under applicable state securities laws, of (ii) the names and addresses interests of the Holders to whom under this Agreement would be adversely affected by the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer or (iii) after conferring with counsel, the SEC is unlikely to permit the commencement of the Exchange Offer prior to the Effectiveness Date, (2) subsequent to the consummation of the Private Exchange, any holder of the Private Exchange Notes so requests or (3) the Exchange Offer is commenced and not consummated prior to the Consummation Date, then the Company and the Guarantors shall promptly deliver to the Holders and the Trustee written notice thereof (the "Shelf Notice") and shall file an Initial Shelf Registration pursuant to Section 3. The parties hereto agree that following the delivery of a Shelf Notice to the Holders of Registrable Notes (in accordance with this Section 2(athe circumstances contemplated by clauses (1) and (3) of the preceding sentence), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, Company and the Issuer Guarantors shall not have no any further obligation to register Registrable Securities (other than conduct the Exchange Offer or the Private Exchange Securities, if issued) pursuant to under this Section 2(b) hereof2.
Appears in 1 contract
Sources: Registration Rights Agreement (Aircraft Service International Inc)
Exchange Offer. To the extent not prohibited by any applicable law or applicable SEC policy, the Issuer The Company shall, for the benefit of the Holders and Holders, at the Issuer’s cost Company's cost, (i) unless the Exchange Offer would not be permitted by applicable law or SEC policy, file with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities Act covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities Transfer Restricted Notes (other than Private Exchange Securities, if issuedNotes (as defined below)) for a like principal amount of Exchange SecuritiesNotes, (ii) unless the Exchange Offer would not be permitted by applicable law or SEC policy, use its reasonable best efforts to cause have such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or prior to not later than the 180th day date which is 150 days after the Closing TimeTime (the "Target Effectiveness Date"), (iii) use its reasonable best efforts to have such Registration Statement remain effective until the closing of the Exchange Offer and (iv) unless the Exchange Offer would not be permitted by applicable law or SEC policy, commence the Exchange Offer and use its reasonable best efforts to issue issue, on or prior to the date which is 30 days after the date on which the Exchange Securities Offer Registration Statement was declared effective by the SEC (the "Target Consummation Date"), Exchange Notes in exchange for all Registrable Securities (other than the Private Exchange Securities, if issued) properly Notes tendered prior thereto in the Exchange Offer not later than 225 days after the Closing TimeOffer. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act and is not a broker-dealer tendering Registrable Securities 8 -7- Transfer Restricted Notes acquired directly from the Issuer or an affiliate of the Issuer Company for its own account, acquires the Exchange Securities Notes in the ordinary course of such Holder’s 's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” distributing (within the meaning of the Securities Act) the Exchange Securities), with Notes) and to transfer such Exchange Securities, Notes from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “"Exchange Period”");
(iii) utilize the services of the Trustee Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities Notes at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Notes delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s his election to have such Securities Notes exchanged;
(v) notify each Holder that any Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(viv) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an Initial Purchaser holds any Securities acquired by it and such Securities have the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities Notes (the “"Private Exchange Securities”Notes"). The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical to all material respects to the Indenture and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter. The Private Exchange Securities, if any, shall be issued under the Indenture. The Private Exchange Securities Notes shall be of the same series as, as and the Issuer Company shall use its all commercially reasonable best efforts to have the Private Exchange Securities Notes bear the same CUSIP number as the Exchange Notes. The Company shall not have any liability under this Agreement solely as a result of such Private Exchange Notes not bearing the same CUSIP number as the Exchange Notes. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Company to proceed with the Exchange SecuritiesOffer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Company and (iii) all governmental approvals shall have been obtained, which approvals the Company deems necessary for the consummation of the Exchange Offer or Private Exchange. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer Company shall:
(i) accept for exchange all Securities Transfer Restricted Notes or portions thereof properly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which is an exhibit thereto;
(ii) accept for exchange all Securities duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Transfer Restricted Notes or portions thereof so accepted for exchange by the IssuerCompany, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Security Note or Private Exchange SecurityNote, as the case may be, equal in principal amount to the principal amount of the Securities Transfer Restricted Notes surrendered by such Holder and accepted for exchange. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that those set forth in the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SECimmediately preceding paragraph. Each Holder of Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) Transfer Restricted Notes for Exchange Securities Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Issuer Company within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any Exchange Securities Notes to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange SecuritiesNotes. The Issuer Company shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities Transfer Restricted Notes in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities Transfer Restricted Notes that are Private Exchange Securities, if issued, Notes and Exchange Securities Notes held by Participating Broker-Dealers, and the Issuer Company shall have no further obligation to register Registrable Securities Transfer Restricted Notes (other than Private Exchange Securities, if issuedNotes) pursuant to Section 2(b) hereof.
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Exchange Offer. To The Issuer and the extent not prohibited by any applicable law or applicable SEC policy, the Issuer Guarantor shall, for the benefit of the Holders and Holders, at the Issuer’s cost cost, (iA) file prepare and use all commercially reasonable efforts to file, as soon as practicable but not later than 120 days following the Closing Date, with the SEC within 90 days after the Closing Time an Exchange Offer Registration Statement on an appropriate form under the Securities 1933 Act covering with respect to a proposed Exchange Offer and the offer by the Issuer issuance and delivery to the Holders to Holders, in exchange all of for the Registrable Transfer Restricted Securities (other than Private Exchange Securities), if issued) for of a like principal amount of Exchange Securities, (iiB) use its all commercially reasonable best efforts to cause such the Exchange Offer Registration Statement to be declared effective under the Securities 1933 Act within 210 days of the Closing Date (or within 270 days of the Closing Date in the event the Exchange Offer Registration Statement is reviewed by the SEC on or prior to the 180th day after the Closing TimeSEC), (iiiC) use its all commercially reasonable best efforts to have such keep the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer and (ivD) commence use all commercially reasonable efforts to cause the Exchange Offer and use its reasonable best efforts to issue Exchange Securities in exchange for all Registrable Securities be consummated not later than 30 business days (other than the Private Exchange Securitiesor longer, if issuedrequired by the federal securities laws) properly tendered prior thereto in following the date on which the Exchange Offer not later than 225 days after Registration Statement was declared effective by the Closing TimeSEC. The Exchange Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer and the Guarantor shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Transfer Restricted Securities (other than Private Exchange Securities, if issued) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act and 1933 Act, (b) is not a broker-dealer tendering Registrable Transfer Restricted Securities acquired directly from the Issuer or an affiliate of the Issuer for its own account, acquires (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of “distributing” (within the meaning of the Securities Act) distributing the Exchange Securities), with ) to transfer such Exchange Securities, Securities from and after their receipt, having no receipt without any limitations or restrictions on their transfer under the Securities 1933 Act and under state securities or “blue sky” sky laws. In connection with the Exchange Offer, the Issuer and the Guarantor shall:
(ia) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(iib) keep the Exchange Offer open for acceptance for a period of not less than 20 Business Days business days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the “Exchange Period”);
(iiic) utilize the services of the Trustee Depositary for the Exchange Offer;
(ivd) permit Holders to withdraw tendered Transfer Restricted Securities at any time prior to the close of business, New York time5:00 p.m. (Eastern Time), on the last Business Day business day of the Exchange Period, by sending to the institution specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Transfer Restricted Securities delivered for exchange exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(ve) notify each Holder that any Security Transfer Restricted Securities not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vif) otherwise comply in all respects with all applicable laws relating to the Exchange Offer. If, prior to consummation of the Exchange Offer, an the Initial Purchaser holds Purchasers hold any Securities acquired by it them and such Securities have having the status of an unsold allotment in the initial distribution, the Issuer shall, upon the request of such any Initial PurchaserPurchaser shall, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer on a senior basis, that are identical (except that such securities shall bear appropriate transfer restrictions) to the Exchange Securities (the “Private Exchange Securities”). The Exchange Securities and the Private Exchange Securities, if any, Securities shall be issued under (i) the IndentureIndenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture but that the Private Exchange Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall provide that the Exchange Securities, the Private Exchange Securities and the Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, the Private Exchange Securities or the Securities will have the right to vote or consent as a separate class on any matter. The Private Exchange Securities shall be of the same series as, as the Exchange Securities and the Issuer and the Guarantor shall use its all commercially reasonable best efforts to have the Private Exchange Securities bear the same CUSIP number as the applicable Exchange Securities. The Issuer and the Guarantor shall not have any liability under this Agreement solely as a result of such Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Issuer and the Guarantor shall:
(i) accept for exchange all Transfer Restricted Securities or portions thereof duly tendered and not validly withdrawn pursuant to the Exchange OfferOffer in accordance with the terms of the Exchange Offer Registration Statement;
(ii) accept for exchange all Securities duly properly tendered pursuant to the Private Exchange; and;
(iii) deliver, or cause to be delivered, deliver to the Trustee for cancellation all Transfer Restricted Securities or portions thereof so accepted for exchange by the Issuer, and issue, and exchange; and
(iv) cause the Trustee under the Indenture promptly to promptly authenticate and deliver to each Holder, a new Exchange Security Securities or Private Exchange SecuritySecurities, as the case may be, equal to each Holder of Transfer Restricted Securities so accepted for exchange in a principal amount equal to the principal amount of the Transfer Restricted Securities surrendered by of such Holder and so accepted for exchange. To Interest on each Exchange Security and Private Exchange Security will accrue from the extent not prohibited by any law or applicable interpretation last date on which interest was paid on the Transfer Restricted Securities surrendered in exchange therefor or, if no interest has been paid on the Transfer Restricted Securities, from the date of the staff of the SEC, the Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offeroriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC. Each , (ii) the due tendering of Transfer Restricted Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Transfer Restricted Securities (other than Private Exchange Securities, if issued) who wishes to exchange such Registrable Securities (other than Private Exchange Securities, if issued) for Exchange Securities exchanged in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations shall have represented that such Holder is not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, that any all Exchange Securities to be received by it will shall be acquired in the ordinary course of its business and that at the time of the commencement consummation of the Exchange Offer it has shall have no arrangement or understanding with any Person person to participate in the distribution (within the meaning of the Securities Act▇▇▇▇ ▇▇▇) of the Exchange SecuritiesSecurities and shall have made such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form S-4 or other appropriate form under the 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 Issuer’s judgment, would reasonably be expected to impair the ability of the Issuer and the Guarantor to proceed with the Exchange Offer or the Private Exchange. The Issuer shall inform the Initial Purchasers, after consultation with the Trustee and the Initial Purchasers, Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Transfer Restricted Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Securities that are Private Exchange Securities, if issued, and Exchange Securities held by Participating Broker-Dealers, and the Issuer shall have no further obligation to register Registrable Securities (other than Private Exchange Securities, if issued) pursuant to Section 2(b) hereof.
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Sources: Registration Rights Agreement (Universal Hospital Services Inc)