Agreements of the Issuer and the Guarantors. Each of the Issuer and the Guarantors hereby agrees: (a) To (i) advise the Initial Purchasers promptly after obtaining knowledge (and, if requested by the Initial Purchasers, confirm such advice in writing) of (A) the issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any of the Securities for offer or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority, and (B) the happening of any event that makes any statement of a material fact made in the Offering Circular untrue or that requires the making of any additions to or changes in the Offering Circular in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, (ii) use their respective reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the Securities under any state securities or Blue Sky laws, and (iii) if at any time any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any of the Securities under any such laws, use their respective reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time. (b) To (i) furnish the Initial Purchasers and those persons identified by the Initial Purchasers to the Issuer, without charge, as many copies of the Preliminary Offering Circular and the Offering Circular, and any amendments or supplements thereto as the Initial Purchasers may reasonably request and (ii) promptly prepare, upon the Initial Purchasers' request, any amendment or supplement to the Offering Circular that the Initial Purchasers deem to be necessary in connection with Exempt Resales (and the Issuer and the Guarantors hereby consent to the use of the Preliminary Offering Circular and the Offering Circular, and any amendments and supplements thereto, by the Initial Purchasers in connection with Exempt Resales). (c) Not to amend or supplement the Offering Circular prior to the Closing Date or for so long as any Initial Purchaser shall hold any Securities, unless the Initial Purchasers shall previously have been advised thereof and shall not have reasonably objected thereto within five Business Days after being furnished a copy thereof. (d) So long as any Initial Purchaser shall hold any Securities, (i) if any event shall occur as a result of which, in the reasonable judgment of the Issuer or the Initial Purchasers, it becomes necessary or advisable to amend or supplement the Offering Circular in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Offering Circular to comply with Applicable Law (as defined below), forthwith to prepare an appropriate amendment or supplement to the Offering Circular (in form and substance satisfactory to the Initial Purchasers) so that as so amended or supplemented, (A) the Offering Circular will not include an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) the Offering Circular will comply with Applicable Law, and (ii) if it becomes necessary or advisable to amend or supplement the Offering Circular so that the Offering Circular will contain all of the information specified in, and meet the requirements of, Rule 144A(d)(4) of the Act, forthwith to prepare an appropriate amendment or supplement to the Offering Circular (in form and substance satisfactory to the Initial Purchasers) so that the Offering Circular, as so amended or supplemented, will contain the information specified in, and meet the requirements of, such Rule. (e) To cooperate with the Initial Purchasers and the Initial Purchasers' counsel in connection with the qualification of the Securities under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and continue such qualification in effect so long as reasonably required for Exempt Resales, and to file such consents to service of process or other documents as may be necessary in order to effect such qualification; provided, that neither the Issuer nor any Guarantor shall be required in connection therewith to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction where it is not now so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. (f) Whether or not any of the Transactions are consummated or this Agreement is terminated, to pay (i) all costs, expenses, fees and taxes incident to the performance of the obligations of the Issuer and the Guarantors under this Agreement, including in connection with: (A) the preparation, printing and distribution of the Preliminary Offering Circular and the Offering Circular and all amendments and supplements thereto (including, without limitation, financial statements and exhibits), including the mailing and delivering of copies thereof to the Initial Purchasers and persons designated by them in the quantities specified herein, and all preliminary and final Blue Sky memoranda and all other agreements, memoranda, correspondence and other documents prepared and delivered in connection herewith, (B) the printing, processing and distribution (including, without limitation, word processing and duplication costs) and delivery of, and performance under, each of the Operative Documents and any other agreements or documents in connection with the Offering, or the purchase, sale or delivery of the Securities, (C) the issuance and delivery of the Securities, including the fees and expenses of the Trustee, the Warrant Agent and the Collateral Agent (including fees and expenses of their respective counsel) and the cost of their respective personnel, and all costs and expenses related to the delivery of the Securities to the Initial Purchasers and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (D) the qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, filing fees and fees and disbursements of the Initial Purchasers' counsel relating to such registration or qualification and memoranda related thereto), (E) the furnishing of such copies of the Preliminary Offering Circular and the Offering Circular, and all amendments and supplements thereto, as may reasonably be requested for use by the Initial Purchasers, and (F) the preparation of the Securities, (ii) all fees and expenses of the counsel and accountants of the Issuer and the Guarantors, (iii) all expenses and listing fees in connection with the application for quotation of the Units, Notes and Warrants in The Portal Market ("PORTAL") of the National Association of Securities Dealers, Inc., (iv) all fees and expenses (including fees and expenses of counsel) of the Issuer in connection with approval of the Securities by DTC for "book-entry" transfer, (v) all fees charged by rating agencies in connection with the rating of the Notes, (vi) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (vii) all costs and expenses of the Exchange Offer, any Note Registration Statement and any Warrant Shelf Registration Statement, as set forth in the Note Registration Rights Agreement and the Warrant Registration Rights Agreement, and (viii) all fees and expenses (including reasonable fees and expenses of counsel) incurred by the Initial Purchasers in connection with the preparation, negotiation and execution of the Operative Documents and the consummation of the transactions contemplated thereby and all other costs and expenses incident and necessary to the performance of the obligations of the Issuer and the Guarantors thereunder for which provision is not otherwise made in this section. (g) To use the proceeds from the sale of the Units in the manner described in the Offering Circular under the caption "Use of Proceeds." (h) To the extent it may lawfully do so, not to insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension, usury or other law, wherever enacted, now or at any time hereafter in force, against the holders of any Securities or that would prohibit or forgive the payment of all or any portion of the principal of or interest on the Notes, or that may affect the covenants or the performance of the Operative Documents (and, to the extent it may lawfully do so, the Issuer hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power granted to the Warrant Agent in the Warrant Agreement, to the Trustee in the Indenture or to the Collateral Agent in the Security Documents but shall suffer and permit the execution of every such power as though no such law had been enacted). (i) To do and perform all things required to be done and performed under the Operative Documents prior to and after the Closing Date (including, without limitation, all things necessary and advisable to obtain (i) the consent of applicable Governmental Authorities (including, without limitation, under applicable gaming laws) to the granting or enforcement of the Security Interests and (ii) on the Closing Date, all termination statements, mortgage releases and other documents necessary to terminate the Liens (as defined in the Indenture) with respect to Indebtedness (as defined in the Indenture) that is being repaid with the net proceeds of the Offering (including without limitation Liens securing borrowings under the Existing Credit Facility) and to terminate the Existing Credit Facility). (j) Not to, and to ensure that no affiliate (as defined in Rule 501(b) of the Act) of the Issuer will, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that would be integrated with the sale of the Securities in a manner that would require the registration under the Act of the sale to the Initial Purchasers or to the Eligible Initial Purchasers of any of the Securities. (k) For so long as any of the Securities remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act, during any period in which the Issuer and the Guarantors are not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available, upon request, to any holder of the Securities in connection with any sale thereof and any prospective Eligible Initial Purchaser of such Securities from such holder, the information required by Rule 144A(d)(4) under the Act. (l) To obtain the approval of DTC for "book entry" transfer of the Notes and the Warrants as Units and as separate securities, and to comply with the representation letters of the Issuer to DTC relating to the approval of the Notes and the Warrants as Units and as separate securities, by DTC for "book entry" transfer. (m) To use their respective reasonable best efforts to effect the inclusion of the Units, Notes and Warrants in PORTAL and to use their respective reasonable best efforts to maintain the listing of the Units, Notes and Warrants on PORTAL for so long as the Units, Notes and Warrants, respectively, are outstanding. (n) For so long as any of the Securities are outstanding, and whether or not required to do so by the rules and regulations of the Commission, (i) to mail or make generally available as soon as practicable after the end of each fiscal year to the record holders of the Securities a financial report of the Issuer and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of stockholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by the Issuer's independent public accountants and (ii) to mail or make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, if any) as of the end of and for such period, and for the period from the beginning of such year to the close of such quarterly period, together with comparable information for the corresponding periods of the preceding year. (o) For so long as any of the Securities are held by the Initial Purchasers, and whether or not required to do so by the rules and regulations of the Commission, to furnish to the Initial Purchasers as soon as available copies of all reports or other communications furnished by the Issuer or any of the Guarantors to its security holders or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Issuer or any of the Guarantors is listed and such other publicly available information concerning the Issuer and/or its subsidiaries as the Initial Purchasers may reasonably request. (p) Except in connection with the Registered Exchange Offer or the filing of the Note Shelf Registration Statement or the Warrant Shelf Registration Statement, not to, and not to authorize or permit any person acting on their behalf to, (i) distribute any offering material in connection with the offer and sale of any of the Securities other than the Preliminary Offering Circular and the Offering Circular and any amendments and supplements to the Offering Circular prepared in compliance with Section 5(d) hereof, or (ii) solicit any offer to buy or offer to sell any of the Securities by means of any form of general solicitation or general advertising (including, without limitation, as such terms are used in Regulation D under the Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Act. (q) During the period beginning on the date hereof and ending on the Closing Date, not to, directly or indirectly, without the prior consent of the Initial Purchasers, offer, sell, contract to sell, or otherwise dispose (or announce any offer, sale, grant of any option to purchase or other disposition) of any securities of the Issuer (including any Common Stock of the Issuer) or the Guarantors, or any warrants, rights or options to purchase or otherwise acquire Common Stock of the Issuer or securities of the Issuer or any Guarantor substantially similar to any of the Securities (other than (i) the Units, (ii) the Notes and the Guarantees, (iii) the Warrants, (iv) commercial paper issued in the ordinary course of business), and (v) the issuance of Common Stock to holders of employee stock options outstanding prior to the date hereof. (r) For so long as the Initial Purchasers shall hold any Securities, to notify the Initial Purchasers promptly in writing if the Issuer or any of its Affiliates becomes a party in interest or a disqualified person with respect to any employee benefit plan. The terms "ERISA," "Affiliates," "party in interest," "disqualified person" and "employee benefit plan" shall have the meanings as set forth in Section 6(bb) hereof.
Appears in 1 contract
Agreements of the Issuer and the Guarantors. Each The Issuer agrees and, upon the execution and delivery of the Issuer Joinder Agreement, the Guarantors, jointly and severally, agree with each of the Guarantors hereby agreesInitial Purchasers as follows:
(a) To (i) advise The Issuer and the Initial Purchasers Guarantors will promptly after obtaining knowledge (and, if requested by furnish to the Initial Purchasers, confirm without charge, such advice in writing) number of (A) the issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any copies of the Securities for offer Final Offering Memorandum as may then be amended or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority, and (B) the happening of any event that makes any statement of a material fact made in the Offering Circular untrue or that requires the making of any additions to or changes in the Offering Circular in order to make the statements therein, in the light of the circumstances under which supplemented as they are made, not misleading, (ii) use their respective reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the Securities under any state securities or Blue Sky laws, and (iii) if at any time any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any of the Securities under any such laws, use their respective reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible timemay reasonably request.
(b) To (i) furnish The Issuer will prepare the Initial Purchasers and those persons identified Final Offering Memorandum in a form approved by the Initial Purchasers to the Issuer, without charge, as many copies of the Preliminary Offering Circular Representatives and the Offering Circular, and any amendments or supplements thereto as the Initial Purchasers may reasonably request and (ii) promptly prepare, upon the Initial Purchasers' request, will not make any amendment or supplement to the Pricing Disclosure Package or to the Final Offering Circular that Memorandum of which the Initial Purchasers deem Representatives shall not previously have been advised or to be necessary in connection with Exempt Resales which it shall reasonably object after being so advised.
(and the c) The Issuer and each of the Guarantors hereby consent consents to the use of the Preliminary Offering Circular Pricing Disclosure Package and the Final Offering Circular, and any amendments and supplements thereto, Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with Exempt Resales).
(c) Not to amend or supplement the Offering Circular prior to offering and sale of the Closing Date or for so long as any Initial Purchaser shall hold any Securities, unless the Initial Purchasers shall previously have been advised thereof and shall not have reasonably objected thereto within five Business Days after being furnished a copy thereofNotes.
(d) So long as If, at any time prior to completion of the distribution of the Notes by the Initial Purchaser shall hold any SecuritiesPurchasers to Eligible Purchasers, (i) if any event shall occur as a result of whichoccurs or information becomes known that, in the reasonable judgment of the Issuer or in the opinion of counsel for the Initial Purchasers, it becomes should be set forth in the Pricing Disclosure Package or the Final Offering Memorandum so that the Pricing Disclosure Package or the Final Offering Memorandum, as then amended or supplemented, does not include any untrue statement of material fact, or omit to state a material fact, necessary or advisable to amend or supplement the Offering Circular in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or supplement the Final Offering Circular Memorandum in order to comply with Applicable Law (as defined below)any law, the Issuer will forthwith to prepare an appropriate supplement or amendment or supplement to the Offering Circular (in form thereto, and substance satisfactory will expeditiously furnish to the Initial Purchasers) so that as so amended or supplemented, (A) the Offering Circular will not include an untrue statement Purchasers and dealers a reasonable number of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) the Offering Circular will comply with Applicable Law, and (ii) if it becomes necessary or advisable to amend or supplement the Offering Circular so that the Offering Circular will contain all of the information specified in, and meet the requirements of, Rule 144A(d)(4) of the Act, forthwith to prepare an appropriate amendment or supplement to the Offering Circular (in form and substance satisfactory to the Initial Purchasers) so that the Offering Circular, as so amended or supplemented, will contain the information specified in, and meet the requirements of, such Rulecopies thereof.
(e) To cooperate with None of Merger Sub, the Company nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representatives, which consent shall not be unreasonably withheld or delayed.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify or register (or obtain exemptions from qualifying or registering) the Notes for offering and the Initial Purchasers' counsel in connection with the qualification of the Securities sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and continue to comply with such qualification laws so as to permit the continuance of sales and dealings therein in effect so such jurisdictions for as long as reasonably required for Exempt Resales, and to file such consents to service of process or other documents as may be necessary in order to effect such qualificationcomplete the distribution of the Notes; provided, provided that neither the Issuer nor any Guarantor shall be required in connection therewith the Issuer shall not be required to file any general consent to service of process or to (i) qualify as a foreign corporation in any jurisdiction where in which it is would not now otherwise be required to so qualified qualify, (ii) file a general consent to service of process in any such jurisdiction, or to (iii) subject itself to taxation in respect of doing business in any jurisdiction in which it is would not otherwise so be subject.
(fg) Whether or not any For a period commencing on the date hereof and ending on the 90th day after the date of the Transactions are consummated or this Agreement is terminatedFinal Offering Memorandum, to pay (i) all costs, expenses, fees and taxes incident to the performance of the obligations of the Issuer and the Guarantors under this Agreementagree not to, including directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in connection with: (Athe disposition by any person at any time in the future of) the preparation, printing and distribution any capital markets debt securities of the Preliminary Offering Circular and the Offering Circular and all amendments and supplements thereto (including, without limitation, financial statements and exhibits), including the mailing and delivering of copies thereof Issuer substantially similar to the Initial Purchasers and persons designated by them in Notes or securities convertible into or exchangeable for such debt securities of the quantities specified hereinIssuer, and all preliminary and final Blue Sky memoranda and all other agreementsor sell or grant options, memoranda, correspondence and other documents prepared and delivered in connection herewithrights or warrants with respect to such debt securities of the Issuer or securities convertible into or exchangeable for such debt securities of the Issuer, (Bii) the printingenter into any swap or other derivatives transaction that transfers to another, processing and distribution (includingin whole or in part, without limitation, word processing and duplication costs) and delivery of, and performance under, each any of the Operative Documents and economic benefits or risks of ownership of such debt securities of the Issuer, whether any other agreements such transaction described in clause (i) or documents in connection with the Offering, or the purchase, sale or (ii) above is to be settled by delivery of the Securities, (C) the issuance and delivery debt securities of the SecuritiesIssuer or other securities, including the fees and expenses in cash or otherwise or (iii) publicly announce an offering of any debt securities of the Trustee, the Warrant Agent and the Collateral Agent (including fees and expenses of their respective counsel) and the cost of their respective personnel, and all costs and expenses related Issuer substantially similar to the delivery Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Securities to the Initial Purchasers ▇▇▇▇▇▇▇ ▇▇▇▇▇ and pursuant to Exempt Resales▇▇▇▇▇▇ ▇▇▇▇▇▇▇, including any transfer or other taxes payable thereon, (D) the qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, filing fees and fees and disbursements on behalf of the Initial Purchasers' counsel relating to such registration or qualification and memoranda related thereto), .
(Eh) the furnishing of such copies So long as any of the Preliminary Offering Circular Notes are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, unless they become subject to and the Offering Circular, and all amendments and supplements thereto, as may reasonably be requested for use by the Initial Purchasers, and (F) the preparation of the Securities, (ii) all fees and expenses of the counsel and accountants of the Issuer and the Guarantors, (iii) all expenses and listing fees in connection comply with the application for quotation of the Units, Notes and Warrants in The Portal Market ("PORTAL"Section 13 or 15(d) of the National Association Exchange Act or file the periodic reports contemplated by such provisions pursuant to the terms of Securities Dealersthe Indenture, Inc., provide or make available electronically to each holder of such restricted securities and to each prospective purchaser (iv) all fees and expenses (including fees and expenses of counselas designated by such holder) of such restricted securities, upon the Issuer request of such holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act (it being acknowledged and agreed that, prior to the first date on which information is required to be provided under the Indenture, the information contained in connection with approval the Final Offering Memorandum is sufficient for this purpose and it being further agreed that delivery to the holders or prospective holders of the Securities by DTC for "book-entry" transfer, (v) all fees charged by rating agencies in connection with the rating Notes of the Notes, (vi) information required to be delivered under the costs and charges of any transfer agent, registrar and/or depositary (including DTCIndenture will be deemed to satisfy this requirement), (vii) all costs and expenses . This covenant is intended to be for the benefit of the Exchange Offerholders, any Note Registration Statement and any Warrant Shelf Registration Statement, as set forth in the Note Registration Rights Agreement and the Warrant Registration Rights Agreementprospective purchasers designated by such holders, and (viii) all fees and expenses (including reasonable fees and expenses from time to time of counsel) incurred by the Initial Purchasers in connection with the preparation, negotiation and execution of the Operative Documents and the consummation of the transactions contemplated thereby and all other costs and expenses incident and necessary to the performance of the obligations of the Issuer and the Guarantors thereunder for which provision is not otherwise made in this sectionsuch restricted securities.
(gi) To use The Issuer will apply the net proceeds from the sale of the Units Notes to be sold by it hereunder substantially in accordance with the description set forth in the manner described in Pricing Disclosure Package and the Final Offering Circular Memorandum under the caption "“Use of Proceeds."”
(hj) To the extent it may lawfully do so, not The Issuer will use its reasonable best efforts to insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension, usury or other law, wherever enacted, now or at any time hereafter in force, against the holders of any Securities or that would prohibit or forgive the payment of all or any portion of the principal of or interest on the Notes, or that may affect the covenants or the performance of the Operative Documents (and, to the extent it may lawfully do so, the Issuer hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power granted to the Warrant Agent in the Warrant Agreement, to the Trustee in the Indenture or to the Collateral Agent in the Security Documents but shall suffer and permit the execution of every such power as though no such law had been enacted)Notes to be eligible for clearance and settlement through DTC.
(ik) To do and perform all things required to be done and performed under During the Operative Documents prior to and after period from the Closing Date (including, without limitation, all things necessary and advisable to obtain (i) the consent of applicable Governmental Authorities (including, without limitation, under applicable gaming laws) to the granting or enforcement of the Security Interests and (ii) on until one year after the Closing Date, all termination statementsthe Issuer will not, mortgage releases and other documents necessary to terminate the Liens (as defined will not permit any of its subsidiaries to, resell any Notes that have been acquired by any of them except for Notes resold in the Indenture) with respect to Indebtedness (as defined in the Indenture) that is being repaid with the net proceeds of the Offering (including without limitation Liens securing borrowings a transaction registered under the Existing Credit Facility) and to terminate the Existing Credit Facility)Securities Act.
(jl) Not to, The Issuer shall and shall cause its affiliates to ensure that no affiliate (as defined in Rule 501(b) not seek the release of the Act) Escrow Property from the Escrow Account unless such release is in compliance with the terms of the Indenture and the Escrow Agreement.
(m) The Issuer will, and its controlled affiliates will not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" security (as defined in the Securities Act) that would be integrated with the sale of the Securities Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or to the Eligible Initial Purchasers of any of the Securities.
(k) For so long as any of the Securities remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act, during any period in which the Notes. The Issuer and the Guarantors are will take reasonable precautions designed to insure that any offer or sale, direct or indirect, in the United States or to any U.S. person (as defined in Rule 902 under the Securities Act), of any Notes or any substantially similar security issued by Merger Sub, the Company or any Guarantor, within six months subsequent to the date on which the distribution of the Notes has been completed (as notified to the Issuer by the Initial Purchasers), is made under restrictions and other circumstances reasonably designed not subject to Section 13 or 15(d) affect the status of the offer and sale of the Notes in the United States and to U.S. persons contemplated by this Agreement as transactions exempt from the registration provisions of the Securities Exchange Act of 1934Act, as amended (the "Exchange Act")including any sales pursuant to Rule 144A under, to make availableor Regulations D or S of, upon request, to any holder of the Securities in connection with any sale thereof and any prospective Eligible Initial Purchaser of such Securities from such holder, the information required by Rule 144A(d)(4) under the Act.
(l) To obtain the approval of DTC for "book entry" transfer of the Notes and the Warrants as Units and as separate securities, and to comply with the representation letters of the Issuer to DTC relating to the approval of the Notes and the Warrants as Units and as separate securities, by DTC for "book entry" transfer.
(m) To use their respective reasonable best efforts to effect the inclusion of the Units, Notes and Warrants in PORTAL and to use their respective reasonable best efforts to maintain the listing of the Units, Notes and Warrants on PORTAL for so long as the Units, Notes and Warrants, respectively, are outstanding.
(n) For so long as any of On the Securities are outstandingMerger Date, the Company and whether or not required to do so by each Guarantor will (A) execute the rules Purchase Agreement Joinder, the Supplemental Indenture and regulations of the Commission, Registration Rights Agreement Joinder and (B) cause (i) to mail or make generally available as soon as practicable after the end of each fiscal year to the record holders of the Securities a financial report of the Issuer and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of stockholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by the Issuer's independent public accountants and (ii) to mail or make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, if any) as of the end of and for such period, and for the period from the beginning of such year to the close of such quarterly period, together with comparable information for the corresponding periods of the preceding year.
(o) For so long as any of the Securities are held by the Initial Purchasers, and whether or not required to do so by the rules and regulations of the Commission, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP to furnish to the Initial Purchasers its written opinion (for the avoidance of doubt, without any negative assurance letter), as soon as available copies of all reports or other communications furnished by counsel to the Issuer or any of Company and the Guarantors Guarantors, addressed to its security holders or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Issuer or any of the Guarantors is listed and such other publicly available information concerning the Issuer and/or its subsidiaries as the Initial Purchasers may reasonably request.
(p) Except and dated the Merger Date, substantially in connection with the Registered Exchange Offer or the filing of the Note Shelf Registration Statement or the Warrant Shelf Registration Statement, not to, and not to authorize or permit any person acting on their behalf to, (i) distribute any offering material in connection with the offer and sale of any of the Securities other than the Preliminary Offering Circular and the Offering Circular and any amendments and supplements to the Offering Circular prepared in compliance with Section 5(d) hereof, or (ii) solicit any offer to buy or offer to sell any of the Securities by means of any form of general solicitation or general advertising Exhibit B hereto (including, without limitation, as such terms with respect to those matters set forth therein that are used in Regulation D under the Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(q) During the period beginning contemplated to be given only on the date hereof and ending on the Closing Merger Date, not to, directly or indirectly, without the prior consent of the Initial Purchasers, offer, sell, contract to sell, or otherwise dispose (or announce any offer, sale, grant of any option to purchase or other disposition) of any securities of the Issuer (including any Common Stock of the Issuer) or the Guarantors, or any warrants, rights or options to purchase or otherwise acquire Common Stock of the Issuer or securities of the Issuer or any Guarantor substantially similar to any of the Securities (other than (i) the Units, (ii) the Notes and the Guarantees, (iii) the Warrants, (iv) commercial paper issued in the ordinary course of business), and (vii) the issuance of Common Stock ▇▇▇▇▇ ▇▇▇▇▇▇ to holders of employee stock options outstanding prior furnish to the date hereof.
(r) For so long as the Initial Purchasers shall hold any Securitieshis written opinion, as General Counsel of the Company, addressed to notify the Initial Purchasers promptly and dated the Merger Date, substantially in writing if the Issuer or any form of its Affiliates becomes a party in interest or a disqualified person with respect to any employee benefit plan. The terms "ERISA," "Affiliates," "party in interest," "disqualified person" and "employee benefit plan" shall have the meanings as set forth in Section 6(bb) hereofExhibit C hereto.
Appears in 1 contract
Agreements of the Issuer and the Guarantors. Each The Issuer and the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Issuer and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering Memorandum, such number of copies of the Offering Memorandum as may then be amended or supplemented as they may reasonably request.
(b) Prior to the sale of Notes and Guarantees hereunder, the Issuer and the Guarantors hereby agrees:
(a) To (i) advise the Initial Purchasers promptly after obtaining knowledge (and, if requested by the Initial Purchasers, confirm such advice in writing) of (A) the issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any of the Securities for offer or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority, and (B) the happening of any event that makes any statement of a material fact made in will prepare the Offering Circular untrue or that requires the making of any additions to or changes Memorandum in the Offering Circular in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, (ii) use their respective reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the Securities under any state securities or Blue Sky laws, and (iii) if at any time any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any of the Securities under any such laws, use their respective reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To (i) furnish a form approved by the Initial Purchasers and those persons identified by the Initial Purchasers to the Issuer, without charge, as many copies of the Preliminary Offering Circular and the Offering Circular, and any amendments or supplements thereto as the Initial Purchasers may reasonably request and (ii) promptly prepare, upon the Initial Purchasers' request, will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular that Memorandum of which the Initial Purchasers deem shall not previously have been advised and to be necessary in connection with Exempt Resales which they shall reasonably object after being so advised.
(and the c) The Issuer and each of the Guarantors hereby consent consents to the use of the Preliminary Offering Circular Pricing Disclosure Package and the Offering Circular, and any amendments and supplements thereto, Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with Exempt Resales).
(c) Not to amend or supplement the Offering Circular prior to offering and sale of the Closing Date or for so long as any Initial Purchaser shall hold any Securities, unless the Initial Purchasers shall previously have been advised thereof and shall not have reasonably objected thereto within five Business Days after being furnished a copy thereofNotes.
(d) So long as If, at any time prior to completion of the distribution of the Notes by the Initial Purchaser shall hold any SecuritiesPurchasers to Eligible Purchasers, (i) if any event shall occur as a result of whichoccurs or information becomes known that, in the reasonable judgment of the Issuer or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, it becomes necessary should be set forth in the Pricing Disclosure Package or advisable to amend or supplement the Offering Circular in order to make Memorandum so that the statements therein, in the light of the circumstances under which they were made, not misleading, Pricing Disclosure Package or if it is necessary to amend or supplement the Offering Circular to comply with Applicable Law (Memorandum, as defined below), forthwith to prepare an appropriate amendment or supplement to the Offering Circular (in form and substance satisfactory to the Initial Purchasers) so that as so then amended or supplemented, (A) the Offering Circular will does not include an any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular will Memorandum in order to comply with Applicable Lawany law, the Issuer and (ii) if it becomes necessary or advisable to amend or supplement the Offering Circular so that the Offering Circular Guarantors will contain all of the information specified in, and meet the requirements of, Rule 144A(d)(4) of the Act, forthwith to prepare an appropriate supplement or amendment or supplement thereto, and will, subject to the Offering Circular clause (in form and substance satisfactory b) above, expeditiously furnish to the Initial Purchasers) so that the Offering Circular, as so amended or supplemented, will contain the information specified in, Purchasers and meet the requirements of, such Ruledealers a reasonable number of copies thereof.
(e) To cooperate None of the Issuer nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum or, when taken together with the information in the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Issuer will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers' counsel in connection with Purchasers may reasonably request to qualify the qualification of the Securities Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and continue to comply with such qualification laws so as to permit the continuance of sales and dealings therein in effect so such jurisdictions for as long as reasonably required for Exempt Resales, and to file such consents to service of process or other documents as may be necessary in order to effect such qualificationcomplete the distribution of the Notes; provided, provided that neither the Issuer nor any Guarantor shall be required in connection therewith the Issuer shall not be required to file any general consent to service of process or to (i) qualify as a foreign corporation in any jurisdiction where in which it is would not now otherwise be required to so qualified qualify, (ii) file a general consent to service of process in any such jurisdiction, or to (iii) subject itself to taxation in respect of doing business in any jurisdiction in which it is would not otherwise so be subject.
(fg) Whether or not any For a period commencing on the date hereof and ending on the 60th day after the date of the Transactions are consummated or this Agreement is terminatedOffering Memorandum, to pay (i) all costs, expenses, fees and taxes incident to the performance of the obligations of the Issuer and the Guarantors under this Agreementagree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition by any person at any time in the future of) any debt securities of the Company or the Issuer substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company or the Issuer, or sell or grant options, rights or warrants with respect to such debt securities of the Company or the Issuer or securities convertible into or exchangeable for such debt securities of the Company or the Issuer, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company or the Issuer (other than any swap or derivative transaction with respect to the Notes), whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company or the Issuer or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including in connection with: (A) any amendments, with respect to the preparation, printing and distribution registration of debt securities of the Preliminary Offering Circular Company or the Issuer substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or the Issuer, or (iv) publicly announce an offering of any debt securities of the Company or the Issuer substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, on behalf of the Initial Purchasers, except in exchange for the Exchange Notes and the Offering Circular and all amendments and supplements thereto (including, without limitation, financial statements and exhibits), including the mailing and delivering of copies thereof to the Initial Purchasers and persons designated by them in the quantities specified herein, and all preliminary and final Blue Sky memoranda and all other agreements, memoranda, correspondence and other documents prepared and delivered in connection herewith, (B) the printing, processing and distribution (including, without limitation, word processing and duplication costs) and delivery of, and performance under, each of the Operative Documents and any other agreements or documents Exchange Guarantees in connection with the Offering, or the purchase, sale or delivery Exchange Offer.
(h) So long as any of the SecuritiesNotes are outstanding, (C) the issuance and delivery of the Securities, including the fees and expenses of the Trustee, the Warrant Agent and the Collateral Agent (including fees and expenses of their respective counsel) and the cost of their respective personnel, and all costs and expenses related to the delivery of the Securities to the Initial Purchasers and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (D) the qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, filing fees and fees and disbursements of the Initial Purchasers' counsel relating to such registration or qualification and memoranda related thereto), (E) the furnishing of such copies of the Preliminary Offering Circular and the Offering Circular, and all amendments and supplements thereto, as may reasonably be requested for use by the Initial Purchasers, and (F) the preparation of the Securities, (ii) all fees and expenses of the counsel and accountants of the Issuer and the Guarantors, (iii) all expenses and listing fees in connection with the application for quotation of the Units, Notes and Warrants in The Portal Market ("PORTAL") of the National Association of Securities Dealers, Inc., (iv) all fees and expenses (including fees and expenses of counsel) of the Issuer in connection with approval of the Securities by DTC for "book-entry" transfer, (v) all fees charged by rating agencies in connection with the rating of the Notes, (vi) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (vii) all costs and expenses of the Exchange Offer, any Note Registration Statement and any Warrant Shelf Registration Statement, as set forth in the Note Registration Rights Agreement and the Warrant Registration Rights Agreement, and (viii) all fees and expenses (including reasonable fees and expenses of counsel) incurred by the Initial Purchasers in connection with the preparation, negotiation and execution of the Operative Documents and the consummation of the transactions contemplated thereby and all other costs and expenses incident and necessary to the performance of the obligations of the Issuer and the Guarantors thereunder for which provision will, furnish at their expense to the Initial Purchasers, and, upon request, to the holders of the Notes and prospective purchasers of the Notes the information required by Rule 144A(d)(4) under the Securities Act (if any) unless such information is not otherwise made in this sectionpublicly available.
(gi) To use The Issuer and the Guarantors will apply the net proceeds from the sale of the Units Notes to be sold by it hereunder substantially in accordance with the description set forth in the manner described in Pricing Disclosure Package and the Offering Circular Memorandum under the caption "“Use of Proceeds."
(h) To the extent it may lawfully do so, not to insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension, usury or other law, wherever enacted, now or at any time hereafter in force, against the holders of any Securities or that would prohibit or forgive the payment of all or any portion of the principal of or interest on the Notes, or that may affect the covenants or the performance of the Operative Documents (and, to the extent it may lawfully do so, the Issuer hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power granted to the Warrant Agent in the Warrant Agreement, to the Trustee in the Indenture or to the Collateral Agent in the Security Documents but shall suffer and permit the execution of every such power as though no such law had been enacted).
(i) To do and perform all things required to be done and performed under the Operative Documents prior to and after the Closing Date (including, without limitation, all things necessary and advisable to obtain (i) the consent of applicable Governmental Authorities (including, without limitation, under applicable gaming laws) to the granting or enforcement of the Security Interests and (ii) on the Closing Date, all termination statements, mortgage releases and other documents necessary to terminate the Liens (as defined in the Indenture) with respect to Indebtedness (as defined in the Indenture) that is being repaid with the net proceeds of the Offering (including without limitation Liens securing borrowings under the Existing Credit Facility) and to terminate the Existing Credit Facility).”
(j) Not toThe Issuer and the Guarantors agree not to solicit any offer to buy or sell the Notes by means of any form of general solicitation or general advertising (as those terms are defined in Regulation D under the Securities Act), and to ensure that no affiliate or by means of any directed selling efforts (as defined in Rule 501(b902 under the Securities Act and the Commission’s Release No. 33-6863) in the United States in connection with any Notes being offered and sold pursuant to Regulation S under the Securities Act.
(k) The Issuer, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably could be expected to cause or result in the stabilization or manipulation of the Act) price of any security of the Issuer willor the Guarantors in connection with the offering of the Notes.
(l) The Issuer and the Guarantors will use their reasonable best efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(m) The Issuer and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Issuer, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(n) The Issuer and the Guarantors agree not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" security (as defined in the Securities Act) that would be integrated with the sale of the Securities Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or to the Eligible Initial Purchasers of any of the SecuritiesNotes.
(ko) For so long as any of the Securities remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act, during any period in which the The Issuer and the Guarantors are not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available, upon request, to any holder of the Securities in connection with any sale thereof and any prospective Eligible Initial Purchaser of such Securities from such holder, the information required by Rule 144A(d)(4) under the Act.
(l) To obtain the approval of DTC for "book entry" transfer of the Notes and the Warrants as Units and as separate securities, and agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Issuer and the Guarantors to DTC relating to the approval of the Notes and the Warrants as Units and as separate securities, by DTC for "“book entry" ” transfer.
(m) To use their respective reasonable best efforts to effect the inclusion of the Units, Notes and Warrants in PORTAL and to use their respective reasonable best efforts to maintain the listing of the Units, Notes and Warrants on PORTAL for so long as the Units, Notes and Warrants, respectively, are outstanding.
(n) For so long as any of the Securities are outstanding, and whether or not required to do so by the rules and regulations of the Commission, (i) to mail or make generally available as soon as practicable after the end of each fiscal year to the record holders of the Securities a financial report of the Issuer and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of stockholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by the Issuer's independent public accountants and (ii) to mail or make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, if any) as of the end of and for such period, and for the period from the beginning of such year to the close of such quarterly period, together with comparable information for the corresponding periods of the preceding year.
(o) For so long as any of the Securities are held by the Initial Purchasers, and whether or not required to do so by the rules and regulations of the Commission, to furnish to the Initial Purchasers as soon as available copies of all reports or other communications furnished by the Issuer or any of the Guarantors to its security holders or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Issuer or any of the Guarantors is listed and such other publicly available information concerning the Issuer and/or its subsidiaries as the Initial Purchasers may reasonably request.
(p) Except The Issuer will indemnify and hold harmless the Initial Purchasers in connection with their capacities as such against any documentary, stamp or similar issuance tax, including any interest and penalties imposed thereon, on the Registered Exchange Offer or the filing of the Note Shelf Registration Statement or the Warrant Shelf Registration Statementcreation, not to, and not to authorize or permit any person acting on their behalf to, (i) distribute any offering material in connection with the offer issuance and sale of the Notes and on the execution and delivery of this Agreement. All payments to be made by the Issuer hereunder shall be made without any of the Securities other than the Preliminary Offering Circular and the Offering Circular and any amendments and supplements to the Offering Circular prepared in compliance with Section 5(d) hereof, withholding or (ii) solicit any offer to buy deduction from or offer to sell any of the Securities by means through which payment is made for or on account of any form of general solicitation present or general advertising (includingfuture taxes, without limitationduties or governmental charges whatsoever unless the Issuer is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Issuer shall pay such additional amounts as may be necessary in order that the net amounts received after such terms are used in Regulation D under withholding or deduction shall equal the Act) amounts that would have been received if no withholding or in any manner involving a public offering within the meaning of Section 4(2) of the Actdeduction had been made.
(q) During The Issuer and the period beginning on the date hereof Guarantors will do and ending on perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, not to, directly or indirectly, without the prior consent of and to satisfy all conditions precedent to the Initial Purchasers, offer, sell, contract to sell, or otherwise dispose (or announce any offer, sale, grant of any option ’ obligations hereunder to purchase or other disposition) of any securities of the Issuer (including any Common Stock of the Issuer) or the Guarantors, or any warrants, rights or options to purchase or otherwise acquire Common Stock of the Issuer or securities of the Issuer or any Guarantor substantially similar to any of the Securities (other than (i) the Units, (ii) the Notes and the Guarantees, (iii) the Warrants, (iv) commercial paper issued in the ordinary course of business), and (v) the issuance of Common Stock to holders of employee stock options outstanding prior to the date hereofNotes.
(r) For so long as the Initial Purchasers shall hold any Securities, to notify the Initial Purchasers promptly in writing if the Issuer or any of its Affiliates becomes a party in interest or a disqualified person with respect to any employee benefit plan. The terms "ERISA," "Affiliates," "party in interest," "disqualified person" and "employee benefit plan" shall have the meanings as set forth in Section 6(bb) hereof.
Appears in 1 contract
Sources: Purchase Agreement (Cott Corp /Cn/)
Agreements of the Issuer and the Guarantors. Each The Issuer and the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Issuer and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering Memorandum, such number of copies of the Offering Memorandum as may then be amended or supplemented as they may reasonably request.
(b) Prior to the sale of Notes and Guarantees hereunder, the Issuer and the Guarantors hereby agrees:
(a) To (i) advise the Initial Purchasers promptly after obtaining knowledge (and, if requested by the Initial Purchasers, confirm such advice in writing) of (A) the issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any of the Securities for offer or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority, and (B) the happening of any event that makes any statement of a material fact made in will prepare the Offering Circular untrue or that requires the making of any additions to or changes Memorandum in the Offering Circular in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, (ii) use their respective reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the Securities under any state securities or Blue Sky laws, and (iii) if at any time any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any of the Securities under any such laws, use their respective reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To (i) furnish a form approved by the Initial Purchasers and those persons identified by the Initial Purchasers to the Issuer, without charge, as many copies of the Preliminary Offering Circular and the Offering Circular, and any amendments or supplements thereto as the Initial Purchasers may reasonably request and (ii) promptly prepare, upon the Initial Purchasers' request, will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular that Memorandum of which the Initial Purchasers deem shall not previously have been advised and to be necessary in connection with Exempt Resales which they shall reasonably object after being so advised.
(and the c) The Issuer and each of the Guarantors hereby consent consents to the use of the Preliminary Offering Circular Pricing Disclosure Package and the Offering Circular, and any amendments and supplements thereto, Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with Exempt Resales).
(c) Not to amend or supplement the Offering Circular prior to offering and sale of the Closing Date or for so long as any Initial Purchaser shall hold any Securities, unless the Initial Purchasers shall previously have been advised thereof and shall not have reasonably objected thereto within five Business Days after being furnished a copy thereofNotes.
(d) So long as If, at any time prior to completion of the distribution of the Notes by the Initial Purchaser shall hold any SecuritiesPurchasers to Eligible Purchasers, (i) if any event shall occur as a result of whichoccurs or information becomes known that, in the reasonable judgment of the Issuer or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, it becomes necessary should be set forth in the Pricing Disclosure Package or advisable to amend or supplement the Offering Circular in order to make Memorandum so that the statements therein, in the light of the circumstances under which they were made, not misleading, Pricing Disclosure Package or if it is necessary to amend or supplement the Offering Circular to comply with Applicable Law (Memorandum, as defined below), forthwith to prepare an appropriate amendment or supplement to the Offering Circular (in form and substance satisfactory to the Initial Purchasers) so that as so then amended or supplemented, (A) the Offering Circular will does not include an any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular will Memorandum in order to comply with Applicable Lawany law, the Issuer and (ii) if it becomes necessary or advisable to amend or supplement the Offering Circular so that the Offering Circular Guarantors will contain all of the information specified in, and meet the requirements of, Rule 144A(d)(4) of the Act, forthwith to prepare an appropriate supplement or amendment or supplement thereto, and will, subject to the Offering Circular clause (in form and substance satisfactory b) above, expeditiously furnish to the Initial Purchasers) so that the Offering Circular, as so amended or supplemented, will contain the information specified in, Purchasers and meet the requirements of, such Ruledealers a reasonable number of copies thereof.
(e) To cooperate None of the Issuer nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representatives, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum or, when taken together with the information in the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Issuer will give notice thereof to the Initial Purchasers through the Representatives and, if requested by the Representatives, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers' counsel in connection with Purchasers may reasonably request to qualify the qualification of the Securities Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and continue to comply with such qualification laws so as to permit the continuance of sales and dealings therein in effect so such jurisdictions for as long as reasonably required for Exempt Resales, and to file such consents to service of process or other documents as may be necessary in order to effect such qualificationcomplete the distribution of the Notes; provided, provided that neither the Issuer nor any Guarantor shall be required in connection therewith the Issuer shall not be required to file any general consent to service of process or to (i) qualify as a foreign corporation in any jurisdiction where in which it is would not now otherwise be required to so qualified qualify, (ii) file a general consent to service of process in any such jurisdiction, or to (iii) subject itself to taxation in respect of doing business in any jurisdiction in which it is would not otherwise so be subject.
(fg) Whether or not any For a period commencing on the date hereof and ending on the 60th day after the date of the Transactions are consummated or this Agreement is terminatedOffering Memorandum, to pay (i) all costs, expenses, fees and taxes incident to the performance of the obligations of the Issuer and the Guarantors under this Agreementagree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition by any person at any time in the future of) any debt securities of the Company or the Issuer substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company or the Issuer, or sell or grant options, rights or warrants with respect to such debt securities of the Company or the Issuer or securities convertible into or exchangeable for such debt securities of the Company or the Issuer, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company or the Issuer (other than any swap or derivative transaction with respect to the Notes), whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company or the Issuer or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including in connection with: (A) any amendments, with respect to the preparation, printing and distribution registration of debt securities of the Preliminary Offering Circular Company or the Issuer substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or the Issuer, or (iv) publicly announce an offering of any debt securities of the Company or the Issuer substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representatives, on behalf of the Initial Purchasers, except in exchange for the Exchange Notes and the Offering Circular and all amendments and supplements thereto (including, without limitation, financial statements and exhibits), including the mailing and delivering of copies thereof to the Initial Purchasers and persons designated by them in the quantities specified herein, and all preliminary and final Blue Sky memoranda and all other agreements, memoranda, correspondence and other documents prepared and delivered in connection herewith, (B) the printing, processing and distribution (including, without limitation, word processing and duplication costs) and delivery of, and performance under, each of the Operative Documents and any other agreements or documents Exchange Guarantees in connection with the Offering, or the purchase, sale or delivery Exchange Offer.
(h) So long as any of the SecuritiesNotes are outstanding, (C) the issuance and delivery of the Securities, including the fees and expenses of the Trustee, the Warrant Agent and the Collateral Agent (including fees and expenses of their respective counsel) and the cost of their respective personnel, and all costs and expenses related to the delivery of the Securities to the Initial Purchasers and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (D) the qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, filing fees and fees and disbursements of the Initial Purchasers' counsel relating to such registration or qualification and memoranda related thereto), (E) the furnishing of such copies of the Preliminary Offering Circular and the Offering Circular, and all amendments and supplements thereto, as may reasonably be requested for use by the Initial Purchasers, and (F) the preparation of the Securities, (ii) all fees and expenses of the counsel and accountants of the Issuer and the Guarantors, (iii) all expenses and listing fees in connection with the application for quotation of the Units, Notes and Warrants in The Portal Market ("PORTAL") of the National Association of Securities Dealers, Inc., (iv) all fees and expenses (including fees and expenses of counsel) of the Issuer in connection with approval of the Securities by DTC for "book-entry" transfer, (v) all fees charged by rating agencies in connection with the rating of the Notes, (vi) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (vii) all costs and expenses of the Exchange Offer, any Note Registration Statement and any Warrant Shelf Registration Statement, as set forth in the Note Registration Rights Agreement and the Warrant Registration Rights Agreement, and (viii) all fees and expenses (including reasonable fees and expenses of counsel) incurred by the Initial Purchasers in connection with the preparation, negotiation and execution of the Operative Documents and the consummation of the transactions contemplated thereby and all other costs and expenses incident and necessary to the performance of the obligations of the Issuer and the Guarantors thereunder for which provision will, furnish at their expense to the Initial Purchasers, and, upon request, to the holders of the Notes and prospective purchasers of the Notes the information required by Rule 144A(d)(4) under the Securities Act (if any) unless such information is not otherwise made in this sectionpublicly available.
(gi) To use The Issuer and the Guarantors will apply the net proceeds from the sale of the Units Notes to be sold by it hereunder substantially in accordance with the description set forth in the manner described in Pricing Disclosure Package and the Offering Circular Memorandum under the caption "“Use of Proceeds."
(h) To the extent it may lawfully do so, not to insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension, usury or other law, wherever enacted, now or at any time hereafter in force, against the holders of any Securities or that would prohibit or forgive the payment of all or any portion of the principal of or interest on the Notes, or that may affect the covenants or the performance of the Operative Documents (and, to the extent it may lawfully do so, the Issuer hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power granted to the Warrant Agent in the Warrant Agreement, to the Trustee in the Indenture or to the Collateral Agent in the Security Documents but shall suffer and permit the execution of every such power as though no such law had been enacted).
(i) To do and perform all things required to be done and performed under the Operative Documents prior to and after the Closing Date (including, without limitation, all things necessary and advisable to obtain (i) the consent of applicable Governmental Authorities (including, without limitation, under applicable gaming laws) to the granting or enforcement of the Security Interests and (ii) on the Closing Date, all termination statements, mortgage releases and other documents necessary to terminate the Liens (as defined in the Indenture) with respect to Indebtedness (as defined in the Indenture) that is being repaid with the net proceeds of the Offering (including without limitation Liens securing borrowings under the Existing Credit Facility) and to terminate the Existing Credit Facility).”
(j) Not toThe Issuer and the Guarantors agree not to solicit any offer to buy or sell the Notes by means of any form of general solicitation or general advertising (as those terms are defined in Regulation D under the Securities Act), and to ensure that no affiliate or by means of any directed selling efforts (as defined in Rule 501(b902 under the Securities Act and the Commission’s Release No. 33-6863) in the United States in connection with any Notes being offered and sold pursuant to Regulation S under the Securities Act.
(k) The Issuer, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably could be expected to cause or result in the stabilization or manipulation of the Act) price of any security of the Issuer willor the Guarantors in connection with the offering of the Notes.
(l) The Issuer and the Guarantors will use their reasonable best efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(m) The Issuer and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Issuer, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(n) The Issuer and the Guarantors agree not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" security (as defined in the Securities Act) that would be integrated with the sale of the Securities Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or to the Eligible Initial Purchasers of any of the SecuritiesNotes.
(ko) For so long as any of the Securities remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act, during any period in which the The Issuer and the Guarantors are not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available, upon request, to any holder of the Securities in connection with any sale thereof and any prospective Eligible Initial Purchaser of such Securities from such holder, the information required by Rule 144A(d)(4) under the Act.
(l) To obtain the approval of DTC for "book entry" transfer of the Notes and the Warrants as Units and as separate securities, and agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Issuer and the Guarantors to DTC relating to the approval of the Notes and the Warrants as Units and as separate securities, by DTC for "“book entry" ” transfer.
(m) To use their respective reasonable best efforts to effect the inclusion of the Units, Notes and Warrants in PORTAL and to use their respective reasonable best efforts to maintain the listing of the Units, Notes and Warrants on PORTAL for so long as the Units, Notes and Warrants, respectively, are outstanding.
(n) For so long as any of the Securities are outstanding, and whether or not required to do so by the rules and regulations of the Commission, (i) to mail or make generally available as soon as practicable after the end of each fiscal year to the record holders of the Securities a financial report of the Issuer and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of stockholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by the Issuer's independent public accountants and (ii) to mail or make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, if any) as of the end of and for such period, and for the period from the beginning of such year to the close of such quarterly period, together with comparable information for the corresponding periods of the preceding year.
(o) For so long as any of the Securities are held by the Initial Purchasers, and whether or not required to do so by the rules and regulations of the Commission, to furnish to the Initial Purchasers as soon as available copies of all reports or other communications furnished by the Issuer or any of the Guarantors to its security holders or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Issuer or any of the Guarantors is listed and such other publicly available information concerning the Issuer and/or its subsidiaries as the Initial Purchasers may reasonably request.
(p) Except The Issuer will indemnify and hold harmless the Initial Purchasers in connection with their capacities as such against any documentary, stamp or similar issuance tax, including any interest and penalties imposed thereon, on the Registered Exchange Offer or the filing of the Note Shelf Registration Statement or the Warrant Shelf Registration Statementcreation, not to, and not to authorize or permit any person acting on their behalf to, (i) distribute any offering material in connection with the offer issuance and sale of the Notes and on the execution and delivery of this Agreement. All payments to be made by the Issuer hereunder shall be made without any of the Securities other than the Preliminary Offering Circular and the Offering Circular and any amendments and supplements to the Offering Circular prepared in compliance with Section 5(d) hereof, withholding or (ii) solicit any offer to buy deduction from or offer to sell any of the Securities by means through which payment is made for or on account of any form of general solicitation present or general advertising (includingfuture taxes, without limitationduties or governmental charges whatsoever unless the Issuer is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Issuer shall pay such additional amounts as may be necessary in order that the net amounts received after such terms are used in Regulation D under withholding or deduction shall equal the Act) amounts that would have been received if no withholding or in any manner involving a public offering within the meaning of Section 4(2) of the Actdeduction had been made.
(q) During The Issuer and the period beginning on the date hereof Guarantors will do and ending on perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, not to, directly or indirectly, without the prior consent of and to satisfy all conditions precedent to the Initial Purchasers, offer, sell, contract to sell, or otherwise dispose (or announce any offer, sale, grant of any option ’ obligations hereunder to purchase or other disposition) of any securities of the Issuer (including any Common Stock of the Issuer) or the Guarantors, or any warrants, rights or options to purchase or otherwise acquire Common Stock of the Issuer or securities of the Issuer or any Guarantor substantially similar to any of the Securities (other than (i) the Units, (ii) the Notes and the Guarantees, (iii) the Warrants, (iv) commercial paper issued in the ordinary course of business), and (v) the issuance of Common Stock to holders of employee stock options outstanding prior to the date hereofNotes.
(r) For so long as the Initial Purchasers shall hold any Securities, to notify the Initial Purchasers promptly in writing if the Issuer or any of its Affiliates becomes a party in interest or a disqualified person with respect to any employee benefit plan. The terms "ERISA," "Affiliates," "party in interest," "disqualified person" and "employee benefit plan" shall have the meanings as set forth in Section 6(bb) hereof.
Appears in 1 contract
Sources: Purchase Agreement (Cott Corp /Cn/)
Agreements of the Issuer and the Guarantors. Each The Issuer and the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Issuer and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering Memorandum, such number of copies of the Offering Memorandum as may then be amended or supplemented as they may reasonably request.
(b) Prior to the sale of Notes and Guarantees hereunder, the Issuer and the Guarantors hereby agrees:
(a) To (i) advise the Initial Purchasers promptly after obtaining knowledge (and, if requested by the Initial Purchasers, confirm such advice in writing) of (A) the issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any of the Securities for offer or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority, and (B) the happening of any event that makes any statement of a material fact made in will prepare the Offering Circular untrue or that requires the making of any additions to or changes Memorandum in the Offering Circular in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, (ii) use their respective reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the Securities under any state securities or Blue Sky laws, and (iii) if at any time any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any of the Securities under any such laws, use their respective reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To (i) furnish a form approved by the Initial Purchasers and those persons identified by the Initial Purchasers to the Issuer, without charge, as many copies of the Preliminary Offering Circular and the Offering Circular, and any amendments or supplements thereto as the Initial Purchasers may reasonably request and (ii) promptly prepare, upon the Initial Purchasers' request, will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular that Memorandum of which the Initial Purchasers deem shall not previously have been advised and to be necessary in connection with Exempt Resales which they shall reasonably object after being so advised.
(and the c) The Issuer and each of the Guarantors hereby consent consents to the use of the Preliminary Offering Circular Pricing Disclosure Package and the Offering Circular, and any amendments and supplements thereto, Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with Exempt Resales).
(c) Not to amend or supplement the Offering Circular prior to offering and sale of the Closing Date or for so long as any Initial Purchaser shall hold any Securities, unless the Initial Purchasers shall previously have been advised thereof and shall not have reasonably objected thereto within five Business Days after being furnished a copy thereofNotes.
(d) So long as If, at any time prior to completion of the distribution of the Notes by the Initial Purchaser shall hold any SecuritiesPurchasers to Eligible Purchasers, (i) if any event shall occur as a result of whichoccurs or information becomes known that, in the reasonable judgment of the Issuer or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, it becomes necessary should be set forth in the Pricing Disclosure Package or advisable to amend or supplement the Offering Circular in order to make Memorandum so that the statements therein, in the light of the circumstances under which they were made, not misleading, Pricing Disclosure Package or if it is necessary to amend or supplement the Offering Circular to comply with Applicable Law (Memorandum, as defined below), forthwith to prepare an appropriate amendment or supplement to the Offering Circular (in form and substance satisfactory to the Initial Purchasers) so that as so then amended or supplemented, (A) the Offering Circular will does not include an any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular will Memorandum in order to comply with Applicable Lawany law, the Issuer and (ii) if it becomes necessary or advisable to amend or supplement the Offering Circular so that the Offering Circular Guarantors will contain all of the information specified in, and meet the requirements of, Rule 144A(d)(4) of the Act, forthwith to prepare an appropriate supplement or amendment or supplement thereto, and will, subject to the Offering Circular clause (in form and substance satisfactory b) above, expeditiously furnish to the Initial Purchasers) so that the Offering Circular, as so amended or supplemented, will contain the information specified in, Purchasers and meet the requirements of, such Ruledealers a reasonable number of copies thereof.
(e) To cooperate None of the Issuer nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum or, when taken together with the information in the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Offering Memorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Issuer will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers' counsel in connection with Purchasers may reasonably request to qualify the qualification of the Securities Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and continue to comply with such qualification laws so as to permit the continuance of sales and dealings therein in effect so such jurisdictions for as long as reasonably required for Exempt Resales, and to file such consents to service of process or other documents as may be necessary in order to effect such qualificationcomplete the distribution of the Notes; provided, provided that neither the Issuer nor any Guarantor shall be required in connection therewith the Issuer shall not be required to file any general consent to service of process or to (i) qualify as a foreign corporation in any jurisdiction where in which it is would not now otherwise be required to so qualified qualify, (ii) file a general consent to service of process in any such jurisdiction, or to (iii) subject itself to taxation in respect of doing business in any jurisdiction in which it is would not otherwise so be subject.
(fg) Whether or not any For a period commencing on the date hereof and ending on the 60th day after the date of the Transactions are consummated or this Agreement is terminatedOffering Memorandum, to pay (i) all costs, expenses, fees and taxes incident to the performance of the obligations of the Issuer and the Guarantors under this Agreementagree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition by any person at any time in the future of) any debt securities of the Company or the Issuer substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company or the Issuer, or sell or grant options, rights or warrants with respect to such debt securities of the Company or the Issuer or securities convertible into or exchangeable for such debt securities of the Company or the Issuer, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company or the Issuer (other than any swap or derivative transaction with respect to the Notes), whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company or the Issuer or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including in connection with: (A) any amendments, with respect to the preparation, printing and distribution registration of debt securities of the Preliminary Offering Circular Company or the Issuer substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or the Issuer, or (iv) publicly announce an offering of any debt securities of the Company or the Issuer substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Barclays Capital Inc., on behalf of the Initial Purchasers, except (i) in exchange for the Exchange Notes and the Offering Circular and all amendments and supplements thereto (including, without limitation, financial statements and exhibits), including the mailing and delivering of copies thereof to the Initial Purchasers and persons designated by them in the quantities specified herein, and all preliminary and final Blue Sky memoranda and all other agreements, memoranda, correspondence and other documents prepared and delivered in connection herewith, (B) the printing, processing and distribution (including, without limitation, word processing and duplication costs) and delivery of, and performance under, each of the Operative Documents and any other agreements or documents Exchange Guarantees in connection with the Offering, or the purchase, sale or delivery of the Securities, (C) the issuance and delivery of the Securities, including the fees and expenses of the Trustee, the Warrant Agent and the Collateral Agent (including fees and expenses of their respective counsel) and the cost of their respective personnel, and all costs and expenses related to the delivery of the Securities to the Initial Purchasers and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (D) the qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, filing fees and fees and disbursements of the Initial Purchasers' counsel relating to such registration or qualification and memoranda related thereto), (E) the furnishing of such copies of the Preliminary Offering Circular and the Offering Circular, and all amendments and supplements thereto, as may reasonably be requested for use by the Initial Purchasers, and (F) the preparation of the SecuritiesExchange Offer, (ii) all fees and expenses in connection with an exchange offer of registered securities for the counsel and accountants of the Issuer Existing DSS Notes and the Guarantors, related guarantees or (iii) all expenses and listing fees in connection with an exchange offer of registered securities for the application for quotation Issuer’s existing 5.375% Senior Notes due 2022 and the related guarantees.
(h) So long as any of the UnitsNotes are outstanding, Notes and Warrants in The Portal Market ("PORTAL") of the National Association of Securities Dealers, Inc., (iv) all fees and expenses (including fees and expenses of counsel) of the Issuer in connection with approval of the Securities by DTC for "book-entry" transfer, (v) all fees charged by rating agencies in connection with the rating of the Notes, (vi) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (vii) all costs and expenses of the Exchange Offer, any Note Registration Statement and any Warrant Shelf Registration Statement, as set forth in the Note Registration Rights Agreement and the Warrant Registration Rights Agreement, and (viii) all fees and expenses (including reasonable fees and expenses of counsel) incurred by the Initial Purchasers in connection with the preparation, negotiation and execution of the Operative Documents and the consummation of the transactions contemplated thereby and all other costs and expenses incident and necessary to the performance of the obligations of the Issuer and the Guarantors thereunder for which provision will, furnish at their expense to the Initial Purchasers, and, upon request, to the holders of the Notes and prospective purchasers of the Notes the information required by Rule 144A(d)(4) under the Securities Act (if any) unless such information is not otherwise made in this sectionpublicly available.
(gi) To use The Issuer and the Guarantors will apply the net proceeds from the sale of the Units Notes to be sold by it hereunder substantially in accordance with the description set forth in the manner described in Pricing Disclosure Package and the Offering Circular Memorandum under the caption "“Use of Proceeds."
(h) To the extent it may lawfully do so, not to insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension, usury or other law, wherever enacted, now or at any time hereafter in force, against the holders of any Securities or that would prohibit or forgive the payment of all or any portion of the principal of or interest on the Notes, or that may affect the covenants or the performance of the Operative Documents (and, to the extent it may lawfully do so, the Issuer hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power granted to the Warrant Agent in the Warrant Agreement, to the Trustee in the Indenture or to the Collateral Agent in the Security Documents but shall suffer and permit the execution of every such power as though no such law had been enacted).
(i) To do and perform all things required to be done and performed under the Operative Documents prior to and after the Closing Date (including, without limitation, all things necessary and advisable to obtain (i) the consent of applicable Governmental Authorities (including, without limitation, under applicable gaming laws) to the granting or enforcement of the Security Interests and (ii) on the Closing Date, all termination statements, mortgage releases and other documents necessary to terminate the Liens (as defined in the Indenture) with respect to Indebtedness (as defined in the Indenture) that is being repaid with the net proceeds of the Offering (including without limitation Liens securing borrowings under the Existing Credit Facility) and to terminate the Existing Credit Facility).”
(j) Not toThe Issuer and the Guarantors agree not to solicit any offer to buy or sell the Notes by means of any form of general solicitation or general advertising (as those terms are defined in Regulation D under the Securities Act), and to ensure that no affiliate or by means of any directed selling efforts (as defined in Rule 501(b902 under the Securities Act and the Commission’s Release No. 33-6863) in the United States in connection with any Notes being offered and sold pursuant to Regulation S under the Securities Act.
(k) The Issuer, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably could be expected to cause or result in the stabilization or manipulation of the Act) price of any security of the Issuer willor the Guarantors in connection with the offering of the Notes.
(l) The Issuer and the Guarantors will use their reasonable best efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(m) The Issuer and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Issuer, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(n) The Issuer and the Guarantors agree not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" security (as defined in the Securities Act) that would be integrated with the sale of the Securities Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or to the Eligible Initial Purchasers of any of the SecuritiesNotes.
(ko) For so long as any of the Securities remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act, during any period in which the The Issuer and the Guarantors are not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available, upon request, to any holder of the Securities in connection with any sale thereof and any prospective Eligible Initial Purchaser of such Securities from such holder, the information required by Rule 144A(d)(4) under the Act.
(l) To obtain the approval of DTC for "book entry" transfer of the Notes and the Warrants as Units and as separate securities, and agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Issuer and the Guarantors to DTC relating to the approval of the Notes and the Warrants as Units and as separate securities, by DTC for "“book entry" ” transfer.
(m) To use their respective reasonable best efforts to effect the inclusion of the Units, Notes and Warrants in PORTAL and to use their respective reasonable best efforts to maintain the listing of the Units, Notes and Warrants on PORTAL for so long as the Units, Notes and Warrants, respectively, are outstanding.
(n) For so long as any of the Securities are outstanding, and whether or not required to do so by the rules and regulations of the Commission, (i) to mail or make generally available as soon as practicable after the end of each fiscal year to the record holders of the Securities a financial report of the Issuer and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of stockholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by the Issuer's independent public accountants and (ii) to mail or make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, if any) as of the end of and for such period, and for the period from the beginning of such year to the close of such quarterly period, together with comparable information for the corresponding periods of the preceding year.
(o) For so long as any of the Securities are held by the Initial Purchasers, and whether or not required to do so by the rules and regulations of the Commission, to furnish to the Initial Purchasers as soon as available copies of all reports or other communications furnished by the Issuer or any of the Guarantors to its security holders or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Issuer or any of the Guarantors is listed and such other publicly available information concerning the Issuer and/or its subsidiaries as the Initial Purchasers may reasonably request.
(p) Except The Issuer will indemnify and hold harmless the Initial Purchasers in connection with their capacities as such against any documentary, stamp or similar issuance tax, including any interest and penalties imposed thereon, on the Registered Exchange Offer or the filing of the Note Shelf Registration Statement or the Warrant Shelf Registration Statementcreation, not to, and not to authorize or permit any person acting on their behalf to, (i) distribute any offering material in connection with the offer issuance and sale of the Notes and on the execution and delivery of this Agreement. All payments to be made by the Issuer hereunder shall be made without any of the Securities other than the Preliminary Offering Circular and the Offering Circular and any amendments and supplements to the Offering Circular prepared in compliance with Section 5(d) hereof, withholding or (ii) solicit any offer to buy deduction from or offer to sell any of the Securities by means through which payment is made for or on account of any form of general solicitation present or general advertising (includingfuture taxes, without limitationduties or governmental charges whatsoever unless the Issuer is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Issuer shall pay such additional amounts as may be necessary in order that the net amounts received after such terms are used in Regulation D under withholding or deduction shall equal the Act) amounts that would have been received if no withholding or in any manner involving a public offering within the meaning of Section 4(2) of the Actdeduction had been made.
(q) During The Issuer and the period beginning on the date hereof Guarantors will do and ending on perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, not to, directly or indirectly, without the prior consent of and to satisfy all conditions precedent to the Initial Purchasers, offer, sell, contract to sell, or otherwise dispose (or announce any offer, sale, grant of any option ’ obligations hereunder to purchase or other disposition) of any securities of the Issuer (including any Common Stock of the Issuer) or the Guarantors, or any warrants, rights or options to purchase or otherwise acquire Common Stock of the Issuer or securities of the Issuer or any Guarantor substantially similar to any of the Securities (other than (i) the Units, (ii) the Notes and the Guarantees, (iii) the Warrants, (iv) commercial paper issued in the ordinary course of business), and (v) the issuance of Common Stock to holders of employee stock options outstanding prior to the date hereofNotes.
(r) For so long as the Initial Purchasers shall hold any Securities, to notify the Initial Purchasers promptly in writing if the Issuer or any of its Affiliates becomes a party in interest or a disqualified person with respect to any employee benefit plan. The terms "ERISA," "Affiliates," "party in interest," "disqualified person" and "employee benefit plan" shall have the meanings as set forth in Section 6(bb) hereof.
Appears in 1 contract
Sources: Purchase Agreement (Cott Corp /Cn/)
Agreements of the Issuer and the Guarantors. Each The Issuer and each of the Issuer Guarantors jointly and the Guarantors hereby agreesseverally covenant and agree with each Initial Purchaser that:
(a) To (i) advise The Issuer will deliver to the Initial Purchasers promptly after obtaining knowledge (and, if requested by the Initial Purchasers, confirm such advice in writing) of (A) the issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any as many copies of the Securities for offer or sale in any jurisdiction, or Offering Memorandum (including all amendments and supplements thereto) as the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority, and (B) the happening of any event that makes any statement of a material fact made in the Offering Circular untrue or that requires the making of any additions to or changes in the Offering Circular in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, (ii) use their respective reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the Securities under any state securities or Blue Sky laws, and (iii) if at any time any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any of the Securities under any such laws, use their respective reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible timeRepresentatives may reasonably request.
(b) To (i) furnish the Initial Purchasers and those persons identified by the Initial Purchasers to the Issuer, without charge, as many copies of the Preliminary Offering Circular and the Offering Circular, and any amendments Before making or supplements thereto as the Initial Purchasers may reasonably request and (ii) promptly prepare, upon the Initial Purchasers' request, distributing any amendment or supplement to the Offering Circular that Memorandum, the Issuer will furnish to the Representatives and counsel for the Initial Purchasers deem a copy of the proposed amendment or supplement for review, and will not distribute any such proposed amendment or supplement to be necessary which the Representatives reasonably object.
(c) The Issuer will advise the Representatives promptly, and confirm such advice in connection with Exempt Resales writing, (and i) of the Issuer and the Guarantors hereby consent to issuance by any governmental or regulatory authority of any order preventing or suspending the use of the Preliminary Offering Circular and Memorandum or the Offering Circular, and Memorandum or the initiation or threatening of any amendments and supplements thereto, by proceeding for that purpose; (ii) of the Initial Purchasers in connection with Exempt Resales).
(c) Not to amend or supplement the Offering Circular occurrence of any event at any time prior to the Closing Date or for so long as any Initial Purchaser shall hold any Securities, unless completion of the Initial Purchasers shall previously have been advised thereof and shall not have reasonably objected thereto within five Business Days after being furnished a copy thereof.
(d) So long as any Initial Purchaser shall hold any Securities, (i) if any event shall occur initial offering of the Securities as a result of which, in the reasonable judgment of the Issuer or the Initial Purchasers, it becomes necessary or advisable to amend or supplement which the Offering Circular in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Offering Circular to comply with Applicable Law (Memorandum as defined below), forthwith to prepare an appropriate amendment or supplement to the Offering Circular (in form and substance satisfactory to the Initial Purchasers) so that as so then amended or supplemented, (A) the Offering Circular will not supplemented would include an any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madeexisting when the Offering Memorandum is delivered to a purchaser, not misleading, ; and (Biii) of the receipt by any of the Issuer of any notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and each of the Issuer will use its reasonable best efforts to prevent the issuance of any such order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Circular Memorandum or suspending any such qualification of the Securities and, if any such order is issued, will comply with Applicable Lawobtain as soon as possible the withdrawal thereof.
(d) If at any time prior to the completion of the initial offering of the Securities (i) any event shall occur or condition shall exist as a result of which the Offering Memorandum as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, and in the light of the circumstances existing when the Offering Memorandum is delivered to a purchaser, not misleading or (ii) if it becomes is necessary or advisable to amend or supplement the Offering Circular Memorandum to comply with law, the Issuer will immediately notify the Initial Purchasers thereof and forthwith prepare and, subject to paragraph (b) above, furnish to the Initial Purchasers such amendments or supplements to the Offering Memorandum as may be necessary so that the statements in the Offering Memorandum as so amended or supplemented will not, in the light of the circumstances existing when the Offering Memorandum is delivered to a purchaser, be misleading or so that the Offering Circular Memorandum will contain all of the information specified in, and meet the requirements of, Rule 144A(d)(4) of the Act, forthwith to prepare an appropriate amendment or supplement to the Offering Circular (in form and substance satisfactory to the Initial Purchasers) so that the Offering Circular, as so amended or supplemented, will contain the information specified in, and meet the requirements of, such Rulecomply with law.
(e) To cooperate with the Initial Purchasers and the Initial Purchasers' counsel in connection with the qualification of the Securities under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and continue such qualification in effect so long as reasonably required for Exempt Resales, and to file such consents to service of process or other documents as may be necessary in order to effect such qualification; provided, that neither the The Issuer nor any Guarantor shall be required in connection therewith to file any general consent to service of process or to will qualify as a foreign corporation in any jurisdiction where it is not now so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(f) Whether or not any of the Transactions are consummated or this Agreement is terminated, to pay (i) all costs, expenses, fees and taxes incident to the performance of the obligations of the Issuer and the Guarantors under this Agreement, including in connection with: (A) the preparation, printing and distribution of the Preliminary Offering Circular and the Offering Circular and all amendments and supplements thereto (including, without limitation, financial statements and exhibits), including the mailing and delivering of copies thereof to the Initial Purchasers and persons designated by them in the quantities specified herein, and all preliminary and final Blue Sky memoranda and all other agreements, memoranda, correspondence and other documents prepared and delivered in connection herewith, (B) the printing, processing and distribution (including, without limitation, word processing and duplication costs) and delivery of, and performance under, each of the Operative Documents and any other agreements or documents in connection with the Offering, or the purchase, sale or delivery of the Securities, (C) the issuance and delivery of the Securities, including the fees and expenses of the Trustee, the Warrant Agent and the Collateral Agent (including fees and expenses of their respective counsel) and the cost of their respective personnel, and all costs and expenses related to the delivery of the Securities to the Initial Purchasers and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (D) the qualification of the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the several states (including, without limitation, filing fees Representatives shall reasonably request and fees will continue such qualifications in effect so long as required for the offering and disbursements of the Initial Purchasers' counsel relating to such registration or qualification and memoranda related thereto), (E) the furnishing of such copies of the Preliminary Offering Circular and the Offering Circular, and all amendments and supplements thereto, as may reasonably be requested for use by the Initial Purchasers, and (F) the preparation resale of the Securities; provided that none of the Issuer or any of the Guarantors shall be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) all fees file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(f) During the period from the date hereof through and expenses of including the counsel and accountants date that is 90 days after the date hereof, each of the Issuer and each of the GuarantorsGuarantors will not, without the prior written consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Issuer or any of the Guarantors and having a tenor of more than one year.
(iiig) all expenses The Issuer will apply the net proceeds from the sale of the Securities as described in the Offering Memorandum under the heading “Use of Proceeds”.
(h) While the Securities remain outstanding and listing fees are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Issuer and each of the Guarantors will, during any period in connection which the Issuer is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon the request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(i) If requested, the Issuer will assist the Initial Purchasers in arranging for the Securities to be designated Private Offerings, Resales and Trading through Automated Linkages (“PORTAL”) Market securities in accordance with the application for quotation of the Units, Notes rules and Warrants in The Portal Market ("PORTAL") of regulations adopted by the National Association of Securities Dealers, Inc., Inc. (iv“NASD”) all fees relating to trading in the PORTAL Market and expenses (including fees and expenses of counsel) of the Issuer in connection with approval of for the Securities by DTC for "book-entry" transfer, (v) all fees charged by rating agencies in connection with the rating of the Notes, (vi) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (vii) all costs and expenses of the Exchange Offer, any Note Registration Statement and any Warrant Shelf Registration Statement, as set forth in the Note Registration Rights Agreement and the Warrant Registration Rights Agreement, and (viii) all fees and expenses (including reasonable fees and expenses of counsel) incurred by the Initial Purchasers in connection with the preparation, negotiation and execution of the Operative Documents and the consummation of the transactions contemplated thereby and all other costs and expenses incident and necessary to the performance of the obligations of the Issuer and the Guarantors thereunder for which provision is not otherwise made in this section.
(g) To use the proceeds from the sale of the Units in the manner described in the Offering Circular under the caption "Use of Proceeds."
(h) To the extent it may lawfully do so, not to insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension, usury or other law, wherever enacted, now or at any time hereafter in force, against the holders of any Securities or that would prohibit or forgive the payment of all or any portion of the principal of or interest on the Notes, or that may affect the covenants or the performance of the Operative Documents (and, to the extent it may lawfully do so, the Issuer hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power granted to the Warrant Agent in the Warrant Agreement, to the Trustee in the Indenture or to the Collateral Agent in the Security Documents but shall suffer and permit the execution of every such power as though no such law had been enacted).
(i) To do and perform all things required to be done eligible for clearance and performed under the Operative Documents prior to and after the Closing Date (including, without limitation, all things necessary and advisable to obtain (i) the consent of applicable Governmental Authorities (including, without limitation, under applicable gaming laws) to the granting or enforcement of the Security Interests and (ii) on the Closing Date, all termination statements, mortgage releases and other documents necessary to terminate the Liens (as defined in the Indenture) with respect to Indebtedness (as defined in the Indenture) that is being repaid with the net proceeds of the Offering (including without limitation Liens securing borrowings under the Existing Credit Facility) and to terminate the Existing Credit Facility)settlement through DTC.
(j) Not Until the issuance of the Exchange Securities, the Issuer will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities that have been acquired by any of them, except for Securities purchased by the Issuer or any of its affiliates and to ensure that no affiliate resold in a transaction registered under the Securities Act.
(k) Neither the Issuer nor any of its affiliates (as defined in Rule 501(b) of the ActRegulation D) of the Issuer will, directly or through any agent, sell, offer for sale or sale, solicit offers to buy or otherwise negotiate in respect of of, any "security" security (as defined in the Securities Act) ), that would is or will be integrated with the sale of the Securities in a manner that would require the registration under the Act of the sale to the Initial Purchasers or to the Eligible Initial Purchasers of any of the Securities.
(k) For so long as any of the Securities remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act, during any period in which the Issuer and the Guarantors are not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available, upon request, to any holder of the Securities in connection with any sale thereof and any prospective Eligible Initial Purchaser of such Securities from such holder, the information required by Rule 144A(d)(4) under the Act.
(l) To obtain the approval of DTC for "book entry" transfer of the Notes and the Warrants as Units and as separate securities, and to comply with the representation letters of the Issuer to DTC relating to the approval of the Notes and the Warrants as Units and as separate securities, by DTC for "book entry" transfer.
(m) To use their respective reasonable best efforts to effect the inclusion of the Units, Notes and Warrants in PORTAL and to use their respective reasonable best efforts to maintain the listing of the Units, Notes and Warrants on PORTAL for so long as the Units, Notes and Warrants, respectively, are outstanding.
(n) For so long as any of the Securities are outstanding, and whether or not required to do so by the rules and regulations of the Commission, (i) to mail or make generally available as soon as practicable after the end of each fiscal year to the record holders of the Securities a financial report of the Issuer and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of stockholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by the Issuer's independent public accountants and (ii) to mail or make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, if any) as of the end of and for such period, and for the period from the beginning of such year to the close of such quarterly period, together with comparable information for the corresponding periods of the preceding year.
(o) For so long as any of the Securities are held by the Initial Purchasers, and whether or not required to do so by the rules and regulations of the Commission, to furnish to the Initial Purchasers as soon as available copies of all reports or other communications furnished by the Issuer or any of the Guarantors to its security holders or furnished to or filed with the Commission or any national securities exchange on which any class of securities None of the Issuer or any of the Guarantors is listed and such its affiliates or any other publicly available information concerning the Issuer and/or its subsidiaries as the Initial Purchasers may reasonably request.
(p) Except in connection with the Registered Exchange Offer or the filing of the Note Shelf Registration Statement or the Warrant Shelf Registration Statement, not to, and not to authorize or permit any person acting on its or their behalf to(other than the Initial Purchasers, as to which no covenant is given) will (i) distribute any offering material in connection with the offer and sale of any of the Securities other than the Preliminary Offering Circular and the Offering Circular and any amendments and supplements to the Offering Circular prepared in compliance with Section 5(d) hereofsolicit offers for, or (ii) solicit any offer to buy or offer to sell any of sell, the Securities by means of any form of general solicitation or general advertising (including, without limitation, as such terms are used in within the meaning of Rule 502(c) of Regulation D under the Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Act.Securities Act or (ii) engage in any directed selling efforts within the meaning of Regulation S, and all such persons will comply with the offering restrictions requirement of Regulation S.
(qm) During Neither the period beginning on Issuer nor any of the date hereof and ending on the Closing Date, not toGuarantors will take, directly or indirectly, without the prior consent any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the Initial Purchasers, offer, sell, contract to sell, or otherwise dispose (or announce any offer, sale, grant of any option to purchase or other disposition) of any securities price of the Issuer (including any Common Stock of the Issuer) or the Guarantors, or any warrants, rights or options to purchase or otherwise acquire Common Stock of the Issuer or securities of the Issuer or any Guarantor substantially similar to any of the Securities (other than (i) the Units, (ii) the Notes and the Guarantees, (iii) the Warrants, (iv) commercial paper issued in the ordinary course of business), and (v) the issuance of Common Stock to holders of employee stock options outstanding prior to the date hereofSecurities.
(r) For so long as the Initial Purchasers shall hold any Securities, to notify the Initial Purchasers promptly in writing if the Issuer or any of its Affiliates becomes a party in interest or a disqualified person with respect to any employee benefit plan. The terms "ERISA," "Affiliates," "party in interest," "disqualified person" and "employee benefit plan" shall have the meanings as set forth in Section 6(bb) hereof.
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